The Family Homes and Domestic Violence (Northern Ireland) Order 1998, Articles 11, 20, 21, and the Children (Northern Ireland) Order 1995, Article 11(7): child as applicant; competence; choice of proceedings.
This case concerned an application made under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 for a non-molestation order and an occupation order. The application was brought by A, who was 12 years old, and by his father and next friend E, against his mother C. E and C were married.
Stephens J began by explaining that in law 'molestation' was best viewed as an umbrella term covering a wide range of behaviour:
'The absence of a statutory definition reflects the concern that the court should have the broadest discretion to interpret its meaning in the light of contemporary experience. (1) The concept of molestation is well established and recognised by the courts. Molestation includes, but is wider than, violence. It encompasses any form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as to call for the intervention of the court. To obtain a non-molestation order, there has to be some evidence of molestation.'
At the time of the application, A and his parents all lived in the same house which E and C jointly owned. The application was made and signed by A, as was his accompanying statement which contained a number of allegations including that his mother hit him, kicked him, pulled his hair and had threatened to kill him. A did not allege that C had harmed E nor did E witness any of the incidents involving A. Stephens J commented that 'if A's statement is correct, then C is an irrational and dangerous individual inflicting physical and emotional harm on him'. He noted that A had special educational needs and that C had a full-scale IQ of 66.
The application form and statement were lodged in the Office of Care and Protection on a Friday and the next day C found out about the application when she opened a letter from the Legal Services Commission. E stated that C said that if she found out who had done this she would blow their brains out or stick a knife in them. A and E subsequently left the matrimonial home, have not returned and all contact between A and C is supervised.
Article 21 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998
A requirement for A to commence these particular proceedings was that he provided evidence of his capacity and understanding. (2) Subsequent to the issue of proceedings and in an email, it was asserted that a solicitor in the firm representing A had met him and deemed him competent to take these proceedings. In the same email it was stated that the applicant's instructions were very clear. There was no statement from the solicitor setting out details as to his or her assessment of A's understanding, nor was there information provided to the court of a type necessary for the court to exercise discretion as to whether to grant leave to commence these proceedings. Stephens J observed that without such evidence, except in the most exceptional circumstances, leave to commence proceedings should not be granted.
Almost a week after the application was lodged, the documents required to be filed in respect of E acting as A's next friend were filed pursuant to Rule 6 of the Family Proceedings Rules (Northern Ireland) 1996. Those documents ought to have been filed at the start of the proceedings. As Stephens J pointed out:
'It is most unusual for one parent to act as the next friend of his or her child bringing proceedings against another parent. The official solicitor should ordinarily be the next friend.'
He explained that if the official solicitor had been approached then an opportunity would have been given to consider whether E should have been commencing proceedings in the Family Proceedings Court seeking an order protecting A.
On the same day that the documents relating to the 'next friend' application were lodged, the Trust commenced a child protection investigation and on the following day proceedings were served on C, and A was interviewed by the police.
A few days later the Master directed the Trust to file an Article 4 report under the Children (Northern Ireland) Order 1995. Directions were also given to obtain a report from a child psychiatrist as to A's understanding given his age and his special educational needs. The solicitors for C also expressed concerns as to her competence and leave was granted for a report to be submitted from a psychologist.
Whether non-molestation proceedings could have been commenced in the Family Proceedings Court
Stephens J noted that a question had arisen as to whether E could have commenced proceedings in the Family Proceedings Court or in the Domestic Proceedings Court in his own name seeking a non-molestation order to protect A. On behalf of A, it was submitted that E had:
'no grounds for making ... an application in relation to himself, that is to say he does not allege that he suffered harassment, molestation, pestering or intimidation at the hands of the mother and as such would not be granted an order under the 1998 Order. In effect, therefore, as his application would have been dismissed, the relevant child, in this case A, would not have been able to obtain the protection of any order and the exercise would have been futile.'
Stephens J disagreed with this view. He pointed out that, under Article 20(2)(a) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998, the court may make a non-molestation order if an application for an order has been made by a person associated with the respondent. The requirement in Article 20(2)(a) of the 1998 Order is that the applicant is associated with the respondent. It is not a requirement that the applicant himself or herself is entitled to a non-molestation order. C and E were married and therefore included in the definition of associated persons.
Article 20(5) of the 1998 Order provides that in deciding whether to grant a non-molestation order, and if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being: '(a) of the applicant ... and (b) of any relevant child'. An associated person can, therefore, commence proceedings for a non-molestation order seeking an order to protect a relevant child in circumstances where no order is sought to protect the applicant.
Whether conditions can be attached to a residence order preventing molestation
A question arose as to whether E could have applied for a residence order in respect of A and at the same time sought conditions under Article 11(7) of the Children (Northern Ireland) Order 1995, ousting C from the matrimonial home and restraining molestation. Stephens J considered that the better course would be to apply for such an order under the Family Homes and Domestic Violence (Northern Ireland) Order 1998. (3)
A's application for an occupation Order
An applicant for a non-molestation order has to be associated with the respondent. An applicant for an occupation order has to come within the terms of Articles 11, 13, 14, 15 or 16 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998. Under these Articles a potential applicant for an occupation order falls into two main categories: an applicant who is entitled to occupy the home by virtue of a legal or beneficial estate or interest or a contractual or statutory right and an applicant who is not. A was neither and so could not apply for an occupation order.
E, an entitled applicant, could have applied for an occupation order in the Family Proceedings Court or the Domestic Proceedings Court seeking an order under Article 11(2)(g) of the 1998 Order requiring C to leave the matrimonial home. In deciding whether to make such an order the court is enjoined by Article 11(5) to have regard to all the circumstances including the housing needs and housing resources of ... any relevant child, such as A.
Transfer from High Court to either the Family Proceedings Court or the Family Care Centre
If A had not agreed to discontinue the non-molestation proceedings, Stephens J advised that he would have dismissed them on the basis of insufficient evidence as to his understanding and that there was inadequate information available to the court to exercise discretion as to whether to grant leave to A to commence proceedings under Article 21 of the 1998 Order 1998. If he had not dismissed the proceedings, he would have considered it appropriate for the non-molestation proceedings to be heard, together with E's application for a residence order, and would have transferred them to a court of summary jurisdiction.
A psychologist reported that C had a full-scale IQ of 66 and stated that she had very limited intellectual or cognitive ability and had significant difficulties in taking in information from written text or documentation. He did not advise as to whether she was disabled within the meaning of rule 6.1 of the Family Proceedings Rules (Northern Ireland) 1996 or suffered from a mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986. Stephens J noted that Lawton LJ had observed that the words 'mental illness' are ordinary words of the English language: they have no particular medical or legal significance. (4) The court should construe them, he stated, in accordance with the advice of Lord Reid, (5) namely that ordinary words of the English language should be interpreted in the way that ordinary sensible people would construe them. Stephens J advised that a decision would have to be taken in relation to the residence order application in the Family Proceedings Court as to whether C is under a disability given her significant impairment of intelligence and social functioning and her mental disability.
A's application for an occupation order dismissed and A given leave to withdraw the application for a nonmolestation order.
This case was flawed from the outset: the question as to the competence (with accompanying evidence) of both plaintiff and defendant should have been addressed before the parties appeared in court; the case should not have presented in the High Court; the official solicitor should have been engaged from the beginning; and a 12-year-old child with special needs should never have been placed in the position of taking proceedings to oust his mother from the family home. The consequent delay, and waste of court time, is a salutary reminder that careful consideration needs to be given by lawyers before they launch proceedings as to whether these should be commenced by child, parent or Trust and whether they should be directed towards the High Court, a Family Proceedings Court or to a Domestic Proceedings Court.
(1) Re Glennon's application for judicial review  NI 327
(2) Re Arthur (Non-molestation proceedings by a child)  NI Fam 19, and R H and others v IH  NI Fam 17
(3) See, Nottinghamshire County Court v P  2 FLR 134 at 144c, Pearson v Franklin  1 WLR 370 and Re D (Residence: Imposition of conditions)  2 FLR 281
(4) W v L  QB 711 at p. 719
(5) Brutus v Cozens  AC 854 at p. 861
Kerry O'Halloran, lawyer, social worker and Adjunct Professor at the Centre of Philanthropy and Nonprofit Studies, QUT, Brisbane, prepared these notes
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|Title Annotation:||Legal notes: Northern Ireland|
|Publication:||Adoption & Fostering|
|Date:||Dec 22, 2009|
|Previous Article:||Notes in brief.|
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