A Trust v M
| Jurisdiction | Northern Ireland |
| Judge | District Judge (MC) Meehan |
| Judgment Date | 11 March 2005 |
| Neutral Citation | [2005] NIMag 4 |
| Date | 11 March 2005 |
| Year | 2012 |
| Court | Magistrates' Court (Northern Ireland) |
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Neutral Citation No. [2005] NIMag 4
Ref:
Mag33
Judgment: approved by the Court for handing down Delivered:
07/12/05
(subject to editorial corrections)
Petty Sessions District of Omagh
County Court Division of Fermanagh and Tyrone
A Trust
Applicant
AND
M
Respondent
(Emergency Protection Order)
Preliminary
1. An application for an Emergency Protection Order (an “EPO”), whereby
children may be removed immediately from their home, is perhaps the most
serious kind of application which any Magistrate may be called upon to decide.
Not infrequently, and perhaps too often, they come before Lay Magistrates
sitting out-of-hours and at home. In such circumstances, the process may
entail two Social Workers, or perhaps only one, attending upon the Magistrate
with no Clerk present. My impression is that there is normally no legal
representative in attendance for the Trust and certainly no parents, nor any
lawyers appearing for the parents and no-one to represent the child’s wishes.
2. There is no right of appeal to any higher Court against the Magistrate’s
decision, save by way of possible Judicial Review proceedings (Essex County
Council v F [1993] 1 FLR 847). If the Magistrate grants the order as sought, the
situation cannot be challenged for a minimum of 72 hours (3 days). A party
who was given notice and actually does attend the hearing of an EPO
application cannot apply to have it discharged anyway. (Article 64(8) of The
Children (Northern Ireland) Order 1995).
3. On Wednesday, 26th October I sat with Lay Magistrates Mr. David Moore and
Mrs. Ruth McRoberts at Omagh Family Proceedings Court to hear an
application to discharge just such an Order, granted the previous Thursday
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evening by another Lay Magistrate. By then, the Trust had also made cross-
application to have the EPO extended. The applications were first listed on
Monday the 24th, but adjourned to the 26th, with pre-Trial directions on the
25th.. In view of the Respondent’s potential difficulties with comprehension
(detailed later) I also directed on 26th October that her mother, Mrs. Mm,
remain present with her at the Hearing.
4. All information which might tend to identify the family concerned has been
removed from this text, in order to protect the rights of the family and of the
children concerned. The judgment is being distributed on the strict
understanding that in any report no person may be identified by name or
location, other than as disclosed in this text, and in particular the anonymity of
the children and the adult members of their family must be strictly preserved.
The history of events
5. At 3.50 pm on Thursday, 20th October 2005 a representative of the Directorate
of Legal Services, acting for the Trust, telephoned the Duty Clerk at
Dungannon Courthouse. The Clerk was informed that the Trust wanted to
arrange for a Social Worker to attend before a Magistrate for the purposes of an
EPO application in regard to a child A., who was located at the Social Services
offices. There was a “History of neglect, father not to have contact with
children but Trust have received information that father is caring for child.”
The Family Proceedings Court of that day having finished, the Clerk
telephoned round in search of a Lay Magistrate who would be available. At the
fourth contact number tried, a Lay Magistrate was secured. This was at 3.59
pm.
6. The foregoing details were entered up by the Duty Clerk upon a document
entitled “Duty Clerk Log Sheet – Emergency Applications: Children Order.”
After the details I have just set out, the next section on that Form is headed
“Granting of Leave”. In this instance, it is ticked “Yes” and this is timed at
4.00 pm. It then goes on to provide details of where and when the application
will come before the Lay Magistrate (5.00 pm at his home) and then records
that the Directorate were informed of this by telephone at 4.05 pm. At 4.50
pm, the written Application, in Form C1, together with the Supplement in
Form C8, as prepared by the Directorate, was faxed to Dungannon
Courthouse.
7. Two Social Workers, Mr. X and his line manager and Acting Senior Social
Worker Mrs. Y, duly attended at the Lay Magistrate’s house and the hearing
commenced there at 6.10 pm, finishing at 6.30 pm. It had not been practicable
in the circumstances for the Duty Clerk to have the aforementioned paperwork
delivered to the Magistrate’s home and the Social Workers did not bring copies
with them. The Lay Magistrate, according to his written record, took oral
testimony from Mr. X. One assumes that this was on oath. I understand that
the Directorate sometimes provide a Solicitor to attend with the Social
Worker(s), but none was involved in this instance, nor, indeed, is representation
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