Case Management in child care proceedings
Dublin Metropolitan District
1. Overriding Objective
1.1 The overriding objective of this practice direction is to enable the court to deal with each case in a manner which is just, efficient and cost effective and, in particular ensuring:
i. That in all decisions and directions made with respect to the conduct of the case, the safety, welfare and best interests of the child or young person, the subject of the proceedings, are paramount;
ii. That it is dealt with expeditiously and fairly;
iii. That it is dealt with in a manner which is proportionate to the nature, importance and complexity of the issues;
iv. That the parties are on an equal footing; and
v. That it is allotted an appropriate share of the court’s resources while taking into account the need to allot resources to other cases.
1.2 The court will give effect to the overriding objective when it interprets the provision of this practice direction, however the practice direction does not limit or interfere in any way with the powers and discretions of the judge under the Child Care Acts 1991-2011 (and subsequent amendments to that Act) and District Court Rules (hereinafter referred to as DCR) either generally or in a particular case.
2. Save in Exceptional Circumstances
2.1 The hearing of such proceedings should be completed in this court within nine months to one year from the date of commencement or earlier in appropriate cases.
2.3 The Child and Family Agency (hereinafter referred to as CFA) should in advance of instituting proceedings have regard to the Principals of Best Practice in Child Protection contained in the National Guidance for the Protection and Welfare of Children (2017).
2.3 The parties should have an opportunity of entering into productive discussions at the earliest possible opportunity.
3. Legal Representation
3.1 The CFA shall endeavour to inform every intended respondent of their entitlement to be legally advised and represented in relation to the matters intended to be brought before the Court. Respondents should be made aware of
• their entitlement to apply for civil legal aid
• their entitlement to have their application(s) prioritised by Law Centers.
and in this regard The CFA should furnish intended respondents with the address and telephone number of all Law Centers in Dublin Metropolitan District Court area.
3.2 Supports available to overcome potential vulnerabilities with regard to issues of capacity, literacy, first language etc. should be made known to intended respondents at the earliest opportunity.
3.3 Without prejudice to paragraph 3.1 any respondent who wishes to proceed without a legal representative remains entitled to do so.
3.4 In the event that a legal representative for a party becomes aware of any circumstance or circumstances which may warrant the provision of additional assistance to overcome barriers that impede access to the court system by persons with physical, mental or sensory disabilities the legal representative may apply on notice to the court for directions.
4. Guardian Ad Litem for the Child
4.1 Where the court is satisfied that it is in the interests of the child and the interests of justice to appoint a Guardian ad Litem in relevant proceedings and where the child to whom the proceedings relate is not a party, the court may appoint a Guardian ad Litem to independently establish the wishes, feelings and interests of the child and present them to the court with recommendations.
4.2 The Guardian ad Litem shall be provided, as appropriate, with access to all applications to court and all CFA files, memoranda and notes regarding the child.
5. Direct Participation, Party Status and Representation of Child
5.1 Where a request is made by a c hild to be present during the hearing or a particular part of the hearing of the proceedings such request should be brought to the attention of the court in order for the request to be considered within the parameters of section 30 (2) of the Child Care Act, 1991 as amended (hereinafter referred to as the 1991 Act).
5.2 The court may direct the procurement of a report pursuant to section 27 (1) of the 1991 Act 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.
5.3 Where the court, having considered
i. The age of the child;
ii. The level of understanding of the child;
iii. The wishes of the child;
iv. The circumstances of the case including any report as set out at paragraph 5.2
is satisfied that it is necessary in the interests of the child and the interests of justice to join a child as a party to the proceedings or a particular part of the proceedings, it may do so.
5.4 The court may appoint a solicitor to represent the child in the proceedings and give directions as to the performance of his duties (which may include, if necessary, directions in relation to the instruction of counsel).
5.5 The legal representative for the child is subject to the ethical requirements applicable to all solicitors and barristers, and must represent the client’s instructions in the proceedings.
6. Service and Filing of Proceedings.
6.1 Service and filing of all court documents and applications must comply with the rules of the DCR as amended from time to time as well as EC Regulation 2201/2003 and EC Regulation 1393/2007 where applicable.
6.2 Service of proceedings or notice of proceedings on a respondent in a non EU country shall be preceded by an application for leave to serve the proceedings out of the jurisdiction made ex parte and shall be supported by an affidavit, in accordance with the DCR.
6.3 Service of proceedings or notice of proceedings under the Protection of Children (Hague Convention) Act, 2000 shall be effected in accordance with District Court (Hague Convention 1996) Rules 2011.
6.4 Copies of every application to court, initiating papers and court reports shall be emailed to the Court in addition to being filed in accordance with the DCR.
6.5 Personal litigants are not expected to file papers by email.
6.6 In circumstances where the CFA have assumed the care of a child or young person under section 12 (3) of the 1991 Act it shall use its best endeavours to immediately inform the parent or parents having custody of the child or person or persons acting in loco parentis that the CFA has a statutory obligation to make an application to court for an emergency care order pursuant to section 13 (3) of the 1991 Act unless it decides to return the child(ren) to their care. Furthermore the CFA shall advise them that they should immediately seek legal advice and representation as set out in paragraph 3.
7. Disclosure And Discovery
7.1 All applications for disclosure/discovery shall comply with Order 45 B of DCR SI 17/2014.
7.2 Where a party is not represented by a legal practitioner access to documents is to be provided by CFA and such documents may not be photographed, copied or removed without leave of the court.
7.3 Documents produced which are admitted into evidence during the course of the proceedings will be made available to be returned to the producer at the conclusion of the proceedings and will be destroyed by the office of the court 56 days after the conclusion of the proceedings unless arrangements have been made with the Office of the court to collect the documents.
8. Case Management
8.1 Case Management Hearings in Child Care matters shall reflect the process and procedures set out in Order 49A DCR as set out in SI 17/2014 unless otherwise varied in this Pra ctice Direction.
8.2 In advance of the first Case Management Hearing the Court shall in any case with an international element have listed and hear any jurisdiction issues arising at a date allocated at the first application hearing.
8.3 All parties have a shared duty to consider at the earliest possible time and continuously throughout the proceedings whether the case may have any international element and shall inform the court at the earliest possible opportunity of the possible existence of any such international element.
9. Case Management Hearing 1
9.1 Immediately following the determination of the second Order extending an Interim Care Order under Section 17(2) of the 1991 Act, the case shall be listed before the Court for a Case Management Hearing (CMH1) to deal inter alia with:-
• the nature of the issues in dispute and to establish if those issues are able to be resolved,
• whether factual issues (disputed allegations) are required to be determined by the Court;
• confirmation that all relevant reports to date have been obtained etc;
• list assessments and reports considered to be necessary to ground the application with details of availability of funding, timetable for completion etc
9.2 The CFA shall, in advance of CMH 1 furnish a Summary Care Plan as outlined in Appendix 1 to the parents/guardians, the solicitors for the parents/guardians and to the Guardian ad Litem appointed for the child at least four days before CMH 1 and same shall be filed in court at least 48 hours in advance of CMH1.
9.3 The CFA shall identify whether the hearsay evidence of a child is sought to be relied upon pursuant to Part III of Children Act, 1997 and any other evidential issues arising;
9.4 Where an expert(s) is reasonably required to resolve the proceedings and that expert is to be jointly instructed the terms of reference for the expert should be agreed in advance of CMH1 and the timescale within which the relevant work can be undertaken confirmed as well as the availability of the expert to give evidence in a hearing.
9.5 The letter of instruction for an expert must advise the expert that is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
9.6 A record of the Case Management Directions arising from CMH1 shall be created by the Court Clerk and will be available to parties on request from the Court Office.
10 Case Management Hearing 2
10.1 Immediately following the determination of the third Order extending an Interim Care Order the case will be listed before the Court for a further Case Management Hearing (CMH2). In advance of CMH 2 notice shall be given by the Respondents to the CFA, the Guardian ad Litem and the Court whether and to what extent it is proposed to:
i. Dispute the relevant legislative threshold criteria for the making of the Order sought by the CFA,
ii. The extent of agreement/disagreement as to the content of materials disclosed;
iii. Whether further disclosure/discovery or reports are deemed necessary and the reason for such further disclosure.
iv. Whether witnesses are to be called by the Respondent(s) and that they have been instructed as set out in 9 above;
v. identify whether the hearsay evidence of a child is sought to be relied upon pursuant to Part III of Children Act, 1997 and any other evidential issues arising;
vi. Any other pre hearing Directions and or Orders required.
10.2 A record of the Case Management Directions arising from CMH 2 shall be created by the Court Clerk and will be available to parties on request from the Court Office.
11. Attendance at Case Management Hearing
11.1 The solicitor and/or counsel attending a CMH shall ensure that he or she is sufficiently familiar with the proceedings as to be able to address the court fully of all relevant aspects of the proceedings; and has authority from the party he or she represents to deal with any matters that are likely to be dealt with at the CMH.
11.2 Where a party is represented by solicitor and counsel the attendance of only one of such legal advisors is required.
12. Case Management: Listing of Case for Hearing
12.1 Proceedings shall only be allocated a hearing date when the court is satisfied having regard to the representations of the parties and to the extent of progress in the proceedings that the proceedings are sufficiently advanced that it is appropriate that they be allocated a date for hearing.
12.2 The court shall consider whether all directions of the court from CMH1 and CMH 2 have been complied with (including any direction that the parties attend an alternative dispute resolution conference).
12.3 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, and the issues that are in dispute.
12.4 In the event that more that one expert witness is to be called to give evidence in relation to a particular issue or issues, the Court may direct any expert witnesses to consult with each other within such time as the Court specifies for the purposes of
i. identifying the issues in respect of which they intend to give evidence,
ii. where possible, reaching agreement on the evidence that they intend to give in respect of those issues, and
iii. considering any matter which the Court may direct them to consider,
and 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 must not be in any way binding on the parties.
12.5 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 action, based on a reasoned and informed view.
13 Case Management: Checklist
13.1 In all cases listed for hearing under section 18 the CFA must file an A4 folder or folders in the court containing the following documents annexed thereto at least 28 days in advance of the hearing
i. A summary of the application;
ii. A copy of the child’s birth certificate;
iii. A copy of other relevant certificates;
iv. A chronology of previous court orders & decisions (if any);
v. Copies of all assessments and reports available to the CFA in respect of the child;
vi. Other relevant reports and records (e.g.; health and education/immigration documents);
vii. Key CFA minutes & records regarding the child (including strategy discussion record/case conference records);
viii. A genogram of family/extended family membership chart;
ix. The care plan pursuant to S.I No. 260 of 1995 or Leaving Care Needs Assessment Form and Preparing for Leaving Care Plan, or After Care Plan.
13.2 In all cases listed for hearing under section 18 the GAL must serve on the Agency and the Respondent(s) and file in Court his/her final report in court at least 21 days in advance of the hearing.
13.3 In all cases listed for hearing under section 18 the Respondent(s) must file in court at least 14 days in advance of the hearing;
(a) Respondents reply to the statement of fact filed by the CFA.
(b) Confirm to the Court that from the respondent(s) point of view
(i) all relevant interlocutory disclosure/discovery or evidential matters have been attended to and the case is ready for hearing;
(ii) That the possibility of reaching agreement on some or all issues has been fully explored;
(iii) That the net issues to be addressed at the final hearing and that evidence addressing those issues has been disclosed;
(iv) 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.
(v) That all other parties have been notified of which witnesses are required for cross examination and the time frame of their availability if relevant;
(vi) That an estimate of the length of time required for examination in chief and cross examination of each witness has been estimated;
14. Court Reports
14.1 The content of social work reports and Guardian ad Litem reports to court should:
i. be as short and focused as possible and clearly set out;
ii. use numbered paragraphs, headings and sub-headings and numbered pages;
iii. balance description and background chronology with evaluation, summary and assessment;
iv. differentiate fact from opinions;
v. highlight unsubstantiated allegations as such;
vi. final reports should contain only facts which will be substantiated by evidence at hearing;
vii. present the information with sensitivity and in a way which does not exacerbate the relations between the parties;
viii. be fair to the parties and demonstrate balance;
ix. avoid unnecessary repetition of material which is available in other or earlier documents before the court.
x. reference any finding of fact made by the Court in the Report to Court for the hearing.
15 Case Management Pre-hearing call over
15.1 There shall be a pre-hearing call over on the Friday not less than 7 days prior to the hearing date.
15.2 The solicitor or counsel for each of the parties or, where a party is not legally represented, the party himself or herself, shall be in attendance.
15.3 Where the court considers it necessary or desirable, it may direct that a party attend the call-over, notwithstanding the fact that the party may be represented by a solicitor.
15.4 The parties shall outline any necessary arrangements required for interpreters for the hearing. Any special measures that may be required for the giving of evidence at the hearing, including by audio visual link and any required for use of a remote witness room shall also be outlined to the Court at the Pre-Hearing call over;
15.5 Where relevant the guardian ad litem shall indicate whether any arrangements are required to be made for the child to express wishes to the judge.
16. Settlement/delay in proceedings
16.1 There shall be a continuing obligation and duty on each party to bring to the court’s attention on notice to all parties as soon as possible any matter which might shorten delay or prolong the hearing of the proceedings.
17 Review of Practice Direction
17.1 The effectiveness of the practices aforementioned will be reviewed after the 1st day of January 2019 in consultation with representatives of legal practitioners and relevant Stakeholders.
The summary care plan for the child y/p should briefly and succinctly set out the following:
⇒ The alleged risk and safety concern(s) for the child or y/p;
⇒ The extent of the efforts made for family reunification;
⇒ Any tasks necessary to evidence or demonstrate changes which the parents/guardians are in the opinion of the CFA required to make and the relevant timeframes for same to achieve family reunification are clearly set out;
⇒ 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.
⇒ 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.
⇒ Where the proposed placement is within the 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. 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.
⇒ 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.
⇒ 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;
⇒ The child’s health, education, emotional and identity needs and how these will be met.
Judge Rosemary Horgan
President of District Court