SV (a minor) and PV and A health and Social Care Trust and The Department of Finance
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Judgment Date | 21 June 2023 |
| Neutral Citation | [2023] NICA 41 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2023] NICA 41
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE12030
ICOS No: 14/020403
Delivered: 21/06/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
(FAMILY DIVISION)
IN THE MATTER OF THE CHILDREN (NORTHERN IRELAND) ORDER 1995
Between:
SV (A MINOR)
Appellant
and
PV
First Respondent
and
A HEALTH AND SOCIAL CARE TRUST
Second Respondent
and
THE DEPARTMENT OF FINANCE
Notice Party
Between:
PV
Appellant
and
A HEALTH AND SOCIAL CARE TRUST
First Respondent
and
SV, FV and GV
(Minors acting by the Official Solicitor as (Children’s Court Guardian Agency)
Second Respondents
___________
Fiona Doherty KC with Niamh McCartney (instructed by McCoubrey Hinds Solicitors)
for the Appellant SV
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Noelle McGrenera KC with Cathy Downey (instructed by McIvor Farrell Solicitors) for
the Respondent and Appellant PV
Claire MacKenzie (instructed by the Directorate of Legal Services) for the Respondent
Health Trust
Neasa Murnaghan KC and Nessa Fee (instructed by the Departmental Solicitor’s Office)
for the Ministry of Justice and Department of Justice (Notice Parties)
___________
Before: Keegan LCJ, Treacy LJ and O’Hara J
___________
KEEGAN LCJ (delivering the judgment of the court)
This judgment has been anonymised to protect the identity of those involved in
this case as it is a family case. This court has utilised the cyphers SV, FV and GV
for the names of the children of the family and PV for the name of the father of
the family. Nothing may be published that will identify any of the participants in
this case.
Introduction
[1] This case concerns the extent to which a court may impose restrictions on the
parental responsibility of a married father upon application by a competent child of
17 subject to a care order. The judge at first instance, Mr Justice Humphreys (“the
judge”) decided that the relevant applicants who were children had no right to apply
for a revocation of their father’s parental responsibility under the Children
(Northern Ireland) Order 1995 (“the Children Order”). One child now 17, appeals
that order on the basis that the statutory impediment is incompatible with his rights
pursuant to articles 6, 8 and 14 of the European Convention on Human Rights (“the
ECHR”).
[2] The judge did, however, accede to a parallel application brought by the
relevant health and social care trust (“the Trust”) by granting declaratory relief to
permit the Trust not to comply with various specific statutory duties to inform the
father as to the three children’s progress. The father appeals that order.
[3] The nub of the case is whether the Children Order is compatible with the
ECHR in that a 17 year old competent child could apply to revoke the parental
responsibility of his unmarried father but not his married father.
Preliminary Issues
[4] Inevitably this court enquired into the status of the one child who wanted to
pursue an appeal against a refusal to revoke parental responsibility. That child was
17 at the date of hearing. However, he is a child in care and the court was concerned
about issues of representation and competence. To that end the court enlisted the
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assistance of the Official Solicitor and in a report filed by Claire Marshall of
18 October 2020 she confirmed the following:
“14. SV at 17 years old, is fast approaching adulthood.
SV presented as relaxed and confident and has his own
well-established views, which he was quick to share with
me.
15. At 17 years of age, it was no surprise to me that SV
had a good understanding of the court proceedings,
evidencing this by telling me he thought the law needed
to be changed. While he told me he was unaware that PV
was appealing the decision in relation to the declaratory
application, his response was ‘I didn’t know he was
appealing that.’
16. I have no doubt in relation to SV’s capacity as he
understood everything we discussed, retained pertinent
information, not just from our discussion on 3 October,
but also information from the original applications, before
Mr Justice Humphreys, months prior. He was able to
clearly articulate his views to me, explaining his
reasoning, for example telling me why he did not want
Mr PV to hold parental responsibility for him as set out at
paragraph 9 above.
17. It is clear that, as a result of his actions in the past,
SV harbours a deeply embedded anger towards PV. SV is
passionate that, because of this past history and because
he has nothing to do with PV now, his parental
responsibilities should be terminated, he should not have
any involvement in decisions about him, nor be entitled to
any information about him. SV was certain he wanted to
pursue this appeal and wanted the law changed.”
[5] Following from the above evidence we were satisfied that SV had the capacity
to instruct his own solicitors and pursue this appeal.
[6] In addition, we asked the Attorney General of Northern Ireland,
Dame Brenda King, to assist us in this case in relation to a legal issue that arose as to
the status of the Children Order relative to the Human Rights Act 1998 (“the Human
Rights Act”). The Attorney filed a helpful written paper in relation to the issue that
we raised which was whether the Children Order was primary or secondary
legislation upon considering the provisions of section 21 of the Human Rights Act.
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