Superior Court Rules

ORDER 65A

SPECIAL CARE OF CHILDREN

1. In this Order:

“the 1991 Act” means the Child Care Act 1991; “the 2001 Act” means the Children Act 2001;

“the 2011 Act” means the Child Care (Amendment) Act 2011;

“Agency” means the Child and Family Agency established by section 7 of the Child and Family Agency Act 2013;

“child” has the same meaning as in section 2(1) of the 1991 Act;

“interim special care order” means an order made under section 23L of the 1991 Act;

“parents” has the meaning assigned to it by section 2(1) of the 1991 Act; “special care order” means an order made under section 23H of the 1991 Act;

“special care proceedings” means proceedings in the Court under Part IVA of the 1991 Act.

[SI 63/18]

2. (1) Only officers of the Court, the parties and their legal representatives, witnesses and such other persons as the Court may allow shall be permitted to be present at the hearing of special care proceedings.

(2) The Court may, if it thinks it proper to do so, order any witness who is not a party to the special care proceedings to leave the Court either until his or her evidence is required or after his or her evidence has been given.

(3) Special care proceedings shall be as informal as is practicable consistent with the administration of justice. The provisions of Order 119, rules 2 and 3 solely insofar as they relate to the wearing of a wig and gown, shall not apply to special care proceedings in the Court.

(4) The forms in Appendix LL shall, with any necessary modifications, be used in special care proceedings where appropriate.

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3. (1) Special care proceedings in the Court shall be commenced by originating notice of motion, which shall be entitled

“ The High Court Special care

In the matter of

A.B, a child [or, as the case may be, a child

whose name is unknown]”

and in which the Agency shall be named as the applicant.

(2) An application for a special care order or an application made on notice for an interim special care order shall be made by originating motion on notice.

(3) An application for an interim special care order made ex parte shall be made by originating motion ex parte, entitled as in sub-rule (2), in which the Agency shall be named as the applicant, provided that the Court may in a case of urgency dispense with the requirement that an originating motion ex parte be filed in advance of the application and may instead accept an undertaking from the Agency to lodge with the Registrar the originating ex parte motion paper.

(4) Subject to the provisions of this Order, applications in special care proceedings shall be grounded upon an affidavit, provided that the Court may where it deems fit direct that an application may be heard wholly or in part on oral evidence, which direction may be given at the hearing.

(5) The respondent or respondents to an originating notice of motion for a special care order or an interim special care order shall, subject to any order or other provision made or directions given by the Court under section 23G(6) of the 1991 Act, be the person or persons specified in section 23G(1) of the 1991 Act.

(6) In addition to any information or evidence required under the Act to be given to the Court on the making of an application for a special care order or an interim special care order, the evidence (whether on affidavit or oral) in support of such an application shall—

(a) specify whether the child to whom the application relates has previously been the subject of a special care order or an interim special care order which has expired and if so, the record number of the proceedings concerned, and

(b) specify whether the child to whom the application relates is currently the subject of any other order of the Court in special care proceedings, or of any order of another court in proceedings concerning the care and welfare of the child.

(7) An originating notice of motion for a special care order or an interim special care order may include an application for further or other relief which may be granted by the Court under the 1991 Act in respect of the child.

(8) A person who is to be informed of an application for a special care order or interim special care order in accordance with section 23G(2) or section 23G(3) of the 1991 Act may (without limiting any other means by which that person may be so notified and unless the Court directs otherwise) be so notified by the delivery of a copy of the originating notice of motion (and, where appropriate in the case of that person, a copy of any grounding affidavit and any exhibits thereto) to that person.

(9) Save where otherwise provided by this Order or directed by the Court, all subsequent applications to the Court in relation to the care of the child who is the subject of the originating notice of motion shall be brought by motion in the proceedings commenced by the originating notice of motion, on notice to all other parties to the special care proceedings.

(10) Save where otherwise directed or permitted by the Court, a copy of the originating notice of motion shall be served on each respondent at least two days prior to the date fixed for hearing the application.

(11) An application for a direction in accordance with section 23G(6) of the 1991 Act that the substantive application proceed otherwise than on notice to a named person who would otherwise be entitled to notice of the application in accordance with section 23G(1) of the 1991 Act may be made ex parte in the matter of intended special care proceedings, or made at the time when an originating application is made ex parte, or otherwise made by motion ex parte.

(12) In any case in which an application in special care proceedings is heard, or a review in accordance with section 23I of the 1991 Act is conducted, otherwise than on affidavit or in the absence of any party, the Court may direct that, in addition to the service by the moving party on the absent party of a copy of the Court’s order, the moving party also send the absent party a transcript or note of the evidence and a note of any reasons given by the Court for making the order concerned or, as the case may be, a note of the outcome of the review hearing.

[SI 63/18]

4.(1) On the return date of any originating notice of motion in proceedings for a special care order or an interim special care order (or on any adjournment from such date, including any review date mentioned in rule 5), the Court shall give directions and make orders for the conduct of the proceedings as, having due regard for the rights of the child who is the subject of the proceedings, appear convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings, which, where appropriate, may include:

(a) any order which might be made or direction which might be given under Order 84B, rule 8;

(b) an order appointing a guardian ad litem in accordance with section 26 of the 1991 Act;

(c) a direction in accordance with section 23G(5) of the 1991 Act that another person mentioned in that subsection be informed of the application, either by the delivery of a copy of the originating notice of motion (and, where appropriate in the case of that person, a copy of any grounding affidavit and any exhibits thereto) to that person or by such other means as may be directed;

(d) a direction in accordance with section 23G(6) of the 1991 Act that the application proceed otherwise than on notice to a named person who would otherwise be entitled to notice of the application in accordance with section 23G(1) of the 1991 Act.

(2) On the hearing of an application for an interim special care order made ex parte, the Court may give such directions and make such orders for the further conduct of the proceedings as, having due regard for the rights of the child who is the subject of the proceedings, appear just and convenient which, where appropriate, may include:

(a) an order appointing a guardian ad litem in accordance with section 26 of the 1991 Act;

(b) a direction in accordance with section 23G(5) or section 23G(6) of the 1991 Act;

(c) directions in accordance with section 23M(1), section 23M(2) or section 23M(8) of the 1991 Act.

[SI 63/18]

5. (1) Where the Court makes a special care order, the Court shall re-list the proceedings on the originating notice of motion in matter of the child concerned for the purposes of the reviews referred to in section 23I(4) of the 1991 Act on such dates (in this rule referred to as the “review dates”) as the Court shall specify, and the Court may give such directions as appear appropriate for the exchange among the parties and delivery to the Court in advance of any such listing for review of any further evidence, report, assessment or information concerning the care and protection of the child.

(2) In addition to any other order it may make or direction it may give on any of the review dates, the Court may, on any review date, re-list the matter of the child concerned for the purposes of the reviews referred to in section 23I(4) of the 1991 Act or such further or other review dates as the Court may specify, and give such further or other directions as appear appropriate for the exchange among the parties and delivery to the Court in advance of any such listing for review of any further evidence, report, assessment or information concerning the care and protection of the child.

[SI 63/18]

6. In having regard to the rights of a child who is the subject of special care proceedings, the Court may, at any time in such proceedings, of its own motion or on the application of any party or other person showing a sufficient interest:

(a) direct that the child be joined as a party or notice party to the special care proceedings;

(b) direct that the child be put on notice of applications and hearings in the special care proceedings, though not a party or notice party, or

(c) where it considers it appropriate having regard to the child’s age and understanding, hear the child in any application or hearing in the special care proceedings.

[SI 63/18]

7. (1) In a case where the Agency does not know the name of the child in respect of whom an application for an interim special care order is made, the originating motion shall identify the child to whom the application relates by description, and the title of the proceedings may be amended by the Court without motion at any stage of the special care proceedings when the identity of the child is established to the satisfaction of the Court.

(2) Where an interim special care order is made on an application by originating motion ex parte

(a) the originating notice of motion on foot of which the Agency applies for an interim special care order shall be made returnable to the date for the hearing of the application for an interim special care order on notice appointed by the Court in accordance with section 23M(1)(a) and section 23M(7) of the 1991 Act, and

(b) the applicant shall comply with the directions of the Court as to service of the originating notice of motion and any affidavit or other document (together with any order made on the application) on any respondent or other person.

[SI 63/18]

8.(1) The following information to be given to the Court in respect of a child who is the subject of special care proceedings shall unless the Court permits the same to be given orally at the hearing concerned, be given in by letter or by electronic mail addressed to the Registrar, and such letter or electronic mail shall be placed on the file concerning the special care proceedings:

(a) information for the purposes of section 23D(4) of the 1991 Act;

(b) information for the purposes of section 23E(3), section 23E(4) section 23E(5), section 23E(8), section 23E(11), section 23E(12) and section 23E(13) of the 1991 Act;

(c) information for the purposes of section 23NF(10) of the 1991 Act.

(2) The Court may direct that a copy of any communication made or may be liable to be made by the Agency to the Court under sub-rule (1) be delivered by the Agency to any other party to the special care proceedings.

[SI 63/18]

9.(1) Where the Court so permits, an application or withdrawal of an application to the Court referred to in sub-rule (3) may be made in writing by letter or by electronic mail addressed to the Registrar (which letter or electronic mail shall be placed on the file concerning the special care proceedings), a copy of which shall, subject to the provisions of the 1991 Act, or any order of the Court made under the 1991 Act, concerning the giving of notice of applications (or information concerning applications) or the withholding of notice, be delivered by the Agency to each of the respondents to the application for the special care order or interim special care order concerned.

(2) Neither the moving party nor any respondent to an application referred to in sub-rule (3) shall attend at the hearing of the application or (as the case may be) its withdrawal, unless the Court otherwise directs.

(3) The applications, or withdrawal of applications to the Court referred to in sub-rules (1) and (2) are-

(a) a withdrawal by the Agency of an application for a special care order or an interim special care order in accordance with section 23E(7) of the 1991 Act;

(b) an application by the Agency to discharge a special care order or interim special care order in the circumstances prescribed by section 23E(9) of the 1991 Act;

(c) an application by the Agency to discharge a special care order or interim special care order in the circumstances prescribed by section 23E(10) of the 1991 Act.

[SI 63/18]

10. (1) The following applications to the Court shall, unless the reliefs concerned have been sought in an originating notice of motion or originating motion ex parte issued under rule 3, and unless the Court otherwise orders, be made by motion ex parte:

(a) an application for a direction under section 23G(5) of the 1991 Act;

(b) an application for an order under section 23NA(1) or section 23NA(2) of the 1991 Act;

(c) an application under section 23J(10) or section 23N(10) of the 1991 Act.

(2) The following applications to the Court shall, subject—

(i) to any relevant provision of the 1991 Act, or any other order of the Court made under the 1991 Act concerning the giving of notice of applications (or information concerning applications) or withholding of notice, and

(ii) to any order or direction of the Court, be made by motion on notice—

(iii) to each of the respondents in the special care proceedings or, as the case may be, to the Agency and each other respondent and

(iv) such other person as the Court may direct:

(a) an application by the Agency under section 23J(1) of the 1991 Act to extend the period for which a special care order has effect for the purpose of continuing the provision of special care to the child;

(b) an application by the Agency under section 23N(1) of the 1991 Act to extend the period for which an interim special care order has effect for the purpose of continuing the provision of special care to the child;

(c) an application by the Agency under section 23NA(5) of the 1991 Act for an order to require a parent, or both parents, to pay to the Agency a sum of money as a contribution towards the cost of maintaining the child, or an application to vary or discharge such an order;

(d) an application to vary or discharge a special care order under sections 23D(6)(b), 23I(5), 23J(7), 23NE(1), 23NE(4), 23NF(1) or 23NG(1) (as the case may be) of the 1991 Act or an interim special care order under sections 23D(6)(b), 23N(6), 23NE(1), 23NE(4), 23NF(1) or 23NG(1) (as the case may be) of the 1991 Act;

(e) an application for directions under section 23NB(2) of the 1991 Act (and the issuing of the notice of motion shall, be taken to satisfy the obligation of notification in section 23NB(1) of the 1991 Act provided it is done as soon as practicable after expiry of the three day period referred in that subsection);

(f) an application for a stay pending appeal under section 23NC of the 1991 Act;

(g) an application to vary a special care order or interim special care order in the circumstances prescribed by section 23NF(2)(d) or (e) of the 1991 Act;

(h) an application for directions or an order under section 23NK of the 1991 Act (including an application to vary or discharge such directions or order).

(3) Notwithstanding sub-rule (2) and save where notice is required to be given under the 1991 Act, the Court may permit the making of any application referred to in sub-rule (2) without notice (including at the hearing of another application in respect of the child or at another hearing concerning the child), where it is satisfied that it is just to do so.

[SI 63/18]

11. (1) An application under section 23NI(4) of the 1991 Act for an order directing a person to deliver up a child to the custody of the Agency shall be made by information on oath of a person duly authorised in that behalf by the Agency, in Form No 7.

(2) An application under section 23NI(6) of the 1991 Act for the issue of a warrant under that subsection shall be made by information on oath of a person duly authorised in that behalf by the Agency, in Form No. 8.

[SI 63/18]

12. An appeal to the Court under section 23NN(7) of the 1991 Act shall be commenced and conducted in accordance with Order 84C, save that the appeal shall be entitled

“The High Court Special Care

In the matter of A.B, a child”

and the party appealing against the decision referred to in section 23NN(6)(d) of the 1991 Act shall be named as the appellant and the Agency or (as the case may be) the person who appealed under section 23NN(4) of the 1991 Act the decision of the Agency shall be named as the respondent.

[SI 63/18]

13. Deleted…

[SI 422/19]

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