Practice Direction for Child Care Proceedings
in District No. 23
1. This Practice Direction shall come into effect in respect of all child care proceedings initiated after 1 February 2020 and shall replace and supersede any and all other Practice Directions relating to child care proceedings in the district courts within District No. 23.
2. This Practice Direction must be read in conjunction with the provisions of Order 84 of the District Court Rules 2005 as amended (“the DCR”).
3. Any deviation from the provisions of this Practice Direction must be approved by a judge of the district court.
4. To enable the court to deal with each child care case in a just and efficient manner with the safety, welfare and best interests of the child at the core of the proceedings.
Duration of proceedings
5. In the majority of child care cases proceedings should be completed within 12 months from the date of commencement. There may be a limited number of unusual cases that take longer to conclude.
6. In advance of issuing proceedings, the Child and Family Agency (“CFA”) should have regard to the most recent edition of Principles of Best Practice in Child Protection contained in the National Guidance for the Protection and Welfare of Children.
7. Proceedings shall be heard in private and only officers of the court, the parties and their legal representatives, witnesses and such other persons as the judge may allow, shall be permitted to be present at the hearing. The judge may order any witness who is not a party to leave the court until their evidence is required or after their evidence is complete.
8. Where a child is delivered up to the custody of the CFA pursuant to subsection 12(3) of the 1991 Act, the CFA shall use its best endeavours to immediately inform the parent(s) of the child or person(s) acting in loco parentis to the child that the CFA has a statutory obligation to make an application to court for an emergency care order unless it decides to return the child(ren) to their care.
9. The parties should have an opportunity of entering into meaningful discussions at the earliest possible stage.
10. The CFA shall endeavour to inform every prospective respondent of their entitlement to be legally advised and represented in relation to the matters intended to be brought before the Court. In particular they should be informed of their entitlement to apply for civil legal aid, to have their application prioritised by Law Centres, the name and address of their nearest Law Centre, and that costs are waived. Any respondent however who wishes to proceed without legal representation remains entitled to do so.
Guardian ad litem for the child
11. Where the court is satisfied that it is in the interests of justice to appoint a guardian ad litem (the “Guardian”) in relevant proceedings, and where the child to whom the proceedings relate is not a party, the court may appoint a Guardian to independently establish the wishes, feelings and interests of the child and present them to the court with recommendations.
12. The Guardian shall be provided with full access to all social work files relating to the subject child(ren).
Direct participation and/or representation of the child
13. Where a request is made by a child to be present during the hearing, or a particular part of the hearing of the proceedings, such request must be brought to the attention of the court. The court will grant the request unless it appears to the court that, having regard to the age of the child or the nature of the proceedings, it would not be in the child’s best interests to accede to the request.
14. The court may direct the preparation of a report to assess the level of maturity of the child and their capacity to make independent autonomous decisions in respect of their care and welfare in the context of the proceedings.
15. The court may join a child as a party to the proceedings or any part thereof if it is of the opinion that it is in the interests of justice to do so having considered the age, level of understanding, and wishes of the child together with the circumstances of the case and the content of any report as aforesaid.
16. The court may appoint a solicitor to represent such a child and give directions as to the performance of such solicitor’s duties, which may include, if necessary, directions in relation to instructing counsel.
17. The Court Service shall designate, using clear signage, a consultation room within the courthouse to facilitate the taking of instruction from respondents to child care proceedings.
Service and filing of proceedings
18. Service and filing of all court documents and applications must comply with Order 84 of the DCR.
Access to documents
19. In general, all social work reports and Guardian reports should be made available to the respondent’s legal representative not fewer than 3 working days before any hearing.
20. It would be preferable if the social worker and/or Guardian read their report(s) to the respondent prior to interim care order (“ICO”) hearing dates so that the respondents are aware of the issues before the proceedings commence.
21. All applications for discovery and inspection of documents shall comply with Order 45 of the DCR. Where a party is not represented by a legal practitioner access to court documents is to be provided by the CFA and such documents may not be photographed, copied, published or removed by the unrepresented party without leave of the court.
22. Documents produced which are admitted into evidence during the course of the proceedings will be made available to be returned to their author at the conclusion of the proceedings and will be disposed of by the office of the court 2 months after the conclusion of the proceedings unless arrangements have been made with the office to collect them.
23. Where a legal practitioner to whom discovery has been made and inspection granted no longer represents a party they should be careful, if furnishing the file or any part thereof to their former client, that it does not contain any such court documents.
24. Case management shall reflect the process and procedures set out in Order 49A of the DCR unless otherwise varied in this Practice Direction.
25. If there is an international element to the proceedings the court must be informed at the first available opportunity so that any resulting issues may be determined on a preliminary basis.
26. After the 4th month, or as soon as practicable thereafter, but not later than the 5th month, upon which there is listed for hearing any application for an extension of an ICO the case shall also stand listed for case management to deal with:
a) The precise nature of the issues in dispute,
b) Whether disputed issues are required to be determined by the court;
c) Confirmation that all extant reports have been obtained;
d) The compilation of a list of necessary assessments and reports, availability of funding and a timetable for completion;
e) Confirmation whether the hearsay evidence of a child is sought to be relied upon pursuant to Part III of Children Act 1997; and
f) Any other evidential issues arising.
27. Where an expert(s) is required and is to be jointly instructed the terms of reference for the expert should be agreed in advance of the case management hearing and the timescale within which the relevant work can be undertaken confirmed as well as the availability of the expert to give evidence at the substantive hearing.
28. At least 7 days in advance of the case management hearing the CFA shall furnish a Plan of Care (see Appendix 1) to the respondents or their legal representatives, and to the Guardian. The plan shall be filed in court at least 4 days in advance.
29. After the 6th month, or as soon as practicable thereafter, but not later than the 7th month, upon which there is listed for hearing any application for an extension of an ICO the case shall also stand listed for a second case management hearing. The timing of this hearing is to facilitate reunification insofar as is possible. In advance of this hearing, notice shall be given by the respondents to the CFA, the Guardian and the Court whether and to what extent it is proposed to:
a) Dispute the legislative threshold criteria for the making of the final order sought by the CFA;
b) The extent of agreement or disagreement as to the content of materials disclosed;
c) Whether further discovery or inspection or reports are deemed necessary and the reason for same;
d) Whether witnesses are to be called by the respondent(s);
e) Identify whether the hearsay evidence of a child is sought to be relied upon pursuant to Part III of Children Act, 1997;
f) Any other evidential issues arising; and
g) Any other pre-hearing directions and/or orders required.
30. The solicitor and/or counsel attending case management hearings shall ensure they are sufficiently familiar with the proceedings to address the court on all relevant aspects of the proceedings. Where a party is represented by solicitor and counsel it is preferable that they should both be in attendance, but at a minimum the attendance of one of such legal advisors is required.
Listing of case for hearing
31. Proceedings shall be allocated a hearing date only when the court is satisfied having regard to the representations of the parties, and compliance with the case managements directions, that it is appropriate to do so.
32. The parties must advise the court of the names of witnesses and their professional qualifications and the number and availability of witnesses required for cross-examination.
33. In the event that more than one expert witness is to be called to give evidence in relation to a particular issue(s), the court may direct any expert witnesses to consult with each other within such time as the court specifies for the purposes of:
a) Identifying the issues in respect of which they intend to give evidence;
b) Where possible, reaching agreement on the evidence that they intend to give in respect of those issues;
c) Considering any matter which the Court may direct them to consider; and
d) Require that such witnesses record in a memorandum to be jointly submitted by them to the district court clerk and delivered by them to the parties, particulars of the outcome of their consultations, within such time as the court specifies, provided that any such outcome will not be binding on the parties.
34. Each party must inform the court of any matter which might delay or prolong the hearing and provide the court with a realistic schedule for the hearing of the proceedings.
35. At least 21 days in advance of the hearing for a care order the CFA must file an A4 folder(s) containing the following documents:
a) Statement of alleged facts;
b) A genogram of family/extended family membership chart;
c) A copy of the child’s birth certificate;
d) A copy of other relevant certificates;
e) A chronology of previous court orders and decisions;
f) Copies of all assessments and reports available to the CFA in respect of the child;
g) Any other relevant reports and records (e.g. health and education or immigration documents); and
h) Key CFA minutes and records regarding the child (including strategy discussions and case conference records).
36. At least 14 days in advance of the hearing the Guardian must furnish his/her final report to the CFA, the respondents, and the court.
37. At least 14 days in advance of the hearing, the respondent(s) must file the following documents in court:
a) Reply to the statement of facts filed by the CFA;
b) Confirm to the court that all relevant interlocutory discovery or evidential matters have been attended to and the case is ready for hearing;
c) That the possibility of reaching agreement on some or all issues has been fully explored;
d) That the net issues to be addressed at the final hearing and that evidence addressing those issues has been disclosed;
e) That all expert witnesses, including medical clinicians who are required for cross-examination are available to attend the hearing and that the witness has been provided with all relevant material;
f) That all other parties have been notified of which witnesses are required for cross examination and the time frame of their availability; and
g) That the duration of time required for examination-in-chief and cross examination of each witness has been properly estimated.
38. The content of social work reports and Guardian reports submitted to the court must:
a) Avoid unnecessary repetition;
b) Be as clear, short and focused as possible;
c) Use numbered paragraphs and pages;
d) Balance description and background chronology with evaluation, summary, analysis, and assessment;
e) Differentiate opinions from facts;
f) Final reports should contain only asserted facts that will be substantiated by evidence at hearing;
g) Insofar as possible present the information with sensitivity and in a manner that does not exacerbate the relations between the parties; and
h) Be fair to the parties and demonstrate balance.
Pre-hearing call over
39. The proceedings shall be listed at least 14 days before the designated hearing date.
40. The solicitor and/or counsel for each of the parties or, where a party is not legally represented, the party, shall be in attendance. Where the court considers it necessary or desirable, it may direct that a party attend notwithstanding the fact that they may be represented by a solicitor.
41. The parties shall outline to the court any necessary arrangements required for interpreters or any special measures that may be required for the presentation of evidence at the hearing, including audio visual link and any requirement for a remote witness room.
42. Where relevant the Guardian shall indicate whether any special arrangements are required to be made for the child to express their wishes to the judge.
Judge of the District Court
The summary Plan of Care for the child should briefly and succinctly set out the following:
1. The alleged risk and safety concern(s) for the child;
2. The extent of the efforts made for family reunification, if applicable;
3. Any tasks necessary to demonstrate changes which the parents or guardians are required to make and the relevant timeframes for same to achieve family reunification, if possible;
4. The nature of the placement currently proposed for the child (both interim and long term) and whether any funding applications are necessary to support that placement;
5. Where the proposed placement is a relative placement in accordance with section 36 of the 1991 Act that all assessment procedures have been finalised and that the CFA are recommending the placement as the child's placement for as long as the child remains in the care of the CFA;
6. Where the proposed placement is within general foster care that the placement is being recommended as the child's placement for as long as the child remains in the care of the CFA;
7. In all other cases where the placement is in a private foster placement that the funding of such placement is not provisional and that the CFA are recommending the placement as the child's placement for as long as the child remains in the care of the CFA;
8. Where the proposed placement is in a Residential Unit that an individualised risk assessment has been undertaken by the CFA, that the nature of the Residential Unit (ordinary, secure, or therapeutic etc) is clarified and any funding applications have been completed, and that the CFA are recommending the nominated placement as the child's placement for as long as the child remains in the care of the CFA;
9. The kind of parent/child/sibling access currently proposed (including frequency and duration of proposed access and whether it is proposed to be open or supervised) both on an interim and long-term basis; and
10. The child’s health, education, emotional and identity needs and how these will be met.