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The Family Proceedings Rules (Northern Ireland) 1996

Type Ni-Statutory-Rule

Publication 1996-07-19

Last updated 2022-11-28

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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(a) on an application for an Article 8 order;

(b) on an application for a care order or supervision order under Article 50;

(c) on an application under Articles 7(1)(a), 7(4), 13(1), 16(6), 33.44, 52(7), 53(2), 53(3), 53(4), 53(9), 55(1), 57(8)(b), 58(1), 58(2), 58(3), 58(4), 62(1), 2(12), 63, 64, 67(9), 69(1), 159(1), 163(1), 178(1);

(d) under Schedule 1, except, where financial relief is also sought by or on behalf of an adult;

(e) on an application under paragraph 6(3) of Schedule 3;

(f) on an application under paragraph 5(2) or 7(1) of Schedule 4; or

(g) on an application under paragraph 10(3) or 12(4) of Schedule 8.

4.2

Unless the court otherwise directs proceedings to which this Part applies shall be heard by a judge in chambers.

4.3

(1) The parties to proceedings in which directions are given under Article 57(6) and any person named in such a direction, form the prescribed class for the purposes of Article 57(8)(b) (application to vary directions made with interim care or interim supervision order).

(2) The following proceedings are specified for the purposes of Article 60 in accordance with paragraph 6(i) thereof—

(a) proceedings under Article 33(1);

(b) proceedings under Article 44;

(d) proceedings under paragraph 6(3) of Schedule 3;

(e) appeals against the determination of proceedings of a kind set out in sub-paragraphs (a) to (d).

(3) The applicant for an order that has been made under Article 62(1) and the persons referred to in Article 62(11) may, in any circumstances, apply under Article 62(12) for a child assessment order to be varied or discharged.

(4) The following persons form the prescribed class for the purposes of Article 63(9)(b) (application to vary directions)—

(a) the parties to the application in which it is sought to vary the directions;

(b) the guardian ad litem;

(d) any person who is named in the directions.

4.4

(1) Where the leave of the court is required to bring any proceedings to which this Part applies, the person seeking leave shall file—

(a) a written request for leave in Form C2 setting out the reasons for the application; and

(b) a draft of the application (being the documents referred to in rule 4.5(2) for the making of which leave is sought together with sufficient copies for one to be served on each respondent.

(2) The documents referred to in paragraph (1) shall—

(a) in relation to an application to the High Court be filed in the Office of Care and Protection or, where rule 2.38 applies, in the Matrimonial Office;

(b) in relation to an application to a county court be filed in the county court office.

(3) On considering a request for leave filed under paragraph (1), the court shall—

(a) grant the request, whereupon the proper officer or chief clerk shall inform the person making the request of the decision, or

(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer or chief clerk shall fix such a date and give such notice as the court directs to the person making the request and to such other persons as the court requires to be notified of the date so fixed.

(4) Where leave is granted to bring proceedings to which this Part applies the application shall proceed in accordance with rule 4.5 but paragraph (1)(a) of that rule shall not apply.

(5) In the case of a request for leave to bring proceedings under Schedule 1, the draft application under paragraph (1) shall be accompanied by a statement in Form C7A setting out the financial details which the person seeking leave believes to be relevant to the request and containing a declaration that it is true to the makers’ best knowledge and belief together with sufficient copies for one to be served on each respondent.

4.5

(1) Subject to paragraph (5), an applicant shall—

(a) file the document referred to in paragraph (2) (which documents shall together be called “the application”) together with sufficient copies for one to be served on each respondent—

(i) in relation to an application to the High Court, in the Office of Care and Protection or, where rule 2.38 applies, in the Matrimonial Office;

(ii) in relation to an application to a county court in the county court office; and

(b) serve a copy of the application together with Form C3 and such (if any) of Forms [[^f00327] C1A,] C4 and C7A as are given to him under paragraph (3)(b) on each respondent such number of days prior to the date fixed under paragraph 3(a) as is specified for that application in column (ii) of Appendix 3.

(2) The documents to be filed under paragraph (1)(a) are—

(i) whichever is appropriate of Forms C1 or C2 and

(ii) [^f00328] such of the supplemental Forms C10 or C11 to C17 as may be appropriate; and

(iii) in the case of an application for an Article 8 order where question 6A on Form C1, or question 3A on Form C2, is answered in the affirmative, supplemental Form C1A; or]

(b) where there is no appropriate form a statement in writing of the order sought,

and where the application is made in respect of more than one child, all the children shall be included in one application.

(3) On receipt of the documents filed under paragraph (1)(a) the proper officer or chief clerk shall—

(a) fix the date for a hearing or a directions appointment allowing sufficient time for the applicant to comply with paragraph (1)(b),

(b) endorse the date so fixed upon Form C3 and, where appropriate, Form C3A and

(c) return forthwith to the applicant the copies of the application and Form C7A if filed with it, together with Form C3 and such of Forms C3A and C4 as are appropriate [[^f00329] and, in the case of an application for an Article 8 Order, Form C1A].

(4) The applicant shall, at the same time as complying with paragraph (1)(b) serve Form C3A on the persons set out for the relevant class of proceedings in column (iv) of Appendix 3.

(5) In the case of proceedings under Schedule 1, the application under paragraph (1) shall be accompanied by a statement in Form C7A setting out the financial details which the applicant believes to be relevant to the application and containing a declaration that it is true to the maker’s best knowledge and belief, together with sufficient copies for one to be served on each respondent.

4.6

(1) An application may be withdrawn only with leave of the court.

(2) Subject to paragraph (3), a person seeking leave to withdraw an application shall file and serve on the parties a written request for leave in Form C2 setting out the reasons for the request.

(3) The request under paragraph (2) may be made orally to the court if the parties and, if appointed, either the guardian ad litem or the welfare officer are present.

(4) Upon receipt of a written request under paragraph (2) the court shall—

(a) if—

(i) the parties consent in writing,

(ii) the guardian ad litem has had an opportunity to make representations, and

(iii) the court thinks fit,

grant the request, in which case the proper officer or chief clerk shall notify the parties, any guardian ad litem and any welfare officer of the granting of the request, or

(b) direct that a date be fixed for the hearing of the request in which case the proper officer or chief clerk shall give at least 7 days’ notice to the parties, the guardian ad litem and the welfare officer, of the date fixed.

4.7

(1) Where an application is made, in accordance with Article 9 of the Allocation Order, for an order transferring proceedings from a family proceedings court or other court of summary jurisdiction following the refusal of that court to order such a transfer, the applicant shall—

(a) file the application in Form C2 with the chief clerk in the family care centre to which the proceedings are sought to be transferred, together with a copy of the certificate issued by the family proceedings court or other court of summary jurisdiction; and

(b) serve a copy of the documents mentioned in sub-paragraph (a) personally on all parties to the proceedings which it is sought to have transferred,

within 2 days after receipt by the applicant of the certificate.

(2) Within 2 days after receipt of the documents served under paragraph (1)(b) any party other than the applicant may file written representations.

(3) The court shall, not before the fourth day after the filing of the application under paragraph (1) unless the parties consent to earlier consideration, consider the application and either—

(a) grant the application whereupon the chief clerk shall inform the parties of that decision, or

(b) direct that a date be fixed for the hearing of the application, whereupon the chief clerk shall fix such a date and give not less than 1 day’s notice to the parties of the date so fixed.

(4) A copy of an order transferring proceedings to a family care centre in accordance with Article 9 of the Allocation Order, shall be sent by the chief clerk to the court from which the proceedings are transferred.

(5) Where proceedings are transferred to a family care centre in accordance with Article 5 or 8 of the Allocation Order the family care centre shall consider whether to transfer those proceedings to the High Court in accordance with Article 10 of that Order and either—

(a) determine that an order for such transfer need not be made;

(b) make such an order for transfer;

(c) order that a date be fixed for the hearing of the question whether such an order for transfer should be made, whereupon the chief clerk shall give such notice to the parties as the court directs of the date so fixed, or

(d) invite the parties to make written representations within a specified period, as to whether such an order should be made; and upon receipt of the representations the court shall act in accordance with sub-paragraphs (a), (b) or (c).

(6) Where proceedings are transferred to the High Court under paragraph (5) any relevant documentation shall be sent by the chief clerk to the Office of Care and Protection.

(7) The proper officer shall notify the parties of an order transferring proceedings from the High Court in accordance with Article 13 or 14 of the Allocation Order and a copy of the order shall be sent to the court to which the proceedings are transferred.

(8) The chief clerk shall notify the parties of an order transferring proceedings in accordance with Article 11 or 12 of the Allocation Order and a copy of the order shall be sent to the court to which the proceedings are transferred.

(9) An order under this rule transferring proceedings in accordance with the Allocation Order shall be in Form C43 and shall be served on the parties by the proper officer or chief clerk as the case may be.

4.8

(1) The respondents to proceedings to which this Part applies shall be those persons set out in the relevant entry in column (iii) of Appendix 3.

(2) In proceedings to which this Part applies a person may file a request in Form C2 that he or another person—

(a) be joined as a party, or

(b) cease to be a party.

(3) On considering a request under paragraph (2) the court shall, subject to paragraph (4)—

(a) grant it without a hearing or representations, save that this shall be done only in the case of a request under paragraph (2)(a), whereupon the proper officer or chief clerk shall inform the parties and the person making the request of that decision, or

(b) order that a date be fixed for the consideration of the request, whereupon the proper officer or chief clerk shall give notice of the date so fixed together with a copy of the request—

(i) in the case of a request under paragraph (2)(a), to the applicant, and

(ii) in the case of a request under paragraph (2)(b), to the parties, or

(c) invite the parties or any of them to make written representations, within a specified period as to whether the request should be granted; and upon the expiry of the period the court shall act in accordance with sub-paragraph (a) or (b).

(4) Where a person with parental responsibility requests that he be joined under paragraph (2)(a), the court shall grant his request.

(5) In proceedings to which this Part applies the court may direct—

(a) that a person who would not otherwise be a respondent under these rules be joined as a party to the proceedings, or

(b) that a party to the proceedings cease to be a party.

4.9

(1) [^f00330] In proceedings to which this Part applies, where these rules require a document to be served the court may direct that—

(a) the requirement shall not apply;

(b) service shall be effected in such manner as may be specified in the direction;

(c) the time specified by the rules for complying with the requirements shall be abridged to such extent as may be specified in the direction.].

(2) Subject to the requirement in rule 4.7(1)(b) of personal service where service of a document is required under this Part it may be effected—

(a) if the person to be served is not known by the person serving to be acting by solicitor—

(i) by delivering it to him personally, or

(ii) by delivering it at, or by sending it by first class post to his residence or his last known residence, or

(b) if the person to be served is known by the person serving to be acting by solicitor—

(i) by delivering the document at, or sending it by first class post to, the solicitor’s address for service,

(ii) where the solicitor’s address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents on every business day to that document exchange, or

(iii) by sending a legible copy of the document by FAX (as defined by R.S.C. Order 1 rule 3(1)) in accordance with the provisions of R.S.C. Order 65 rule 5(2A) to the solicitors office.

(3) Where a child who is a party to proceedings to which this Part applies is required by these rules to serve a document, service shall be effected by—

(a) the solicitor acting for the child, or

(b) where there is no such solicitor, the guardian ad litem, or

(4) Service of any document on a child shall, subject to any direction of the court, be effected by service on—

(a) the solicitor acting for the child, or

(b) Where there is no such solicitor, the guardian ad litem, or

(5) Where the court refuses leave under paragraph (3)(c) it shall give a direction under paragraph (1).

(6) A document shall, unless the contrary is proved, be deemed to have been served—

(a) in the case of service by first class post, on the second business day after posting, and

(b) in the case of service in accordance with paragraph (2)(b)(ii), on the second business day after the day on which it is left at the document exchange.

(7) At or before the first directions appointment in, or hearing of, proceedings to which this Part applies the applicant shall file a statement that service of—

(a) a copy of the application and other documents referred to in rule 4.5(1)(b) has been effected on each respondent, and

(b) notice of the proceedings has been given under rule 4.5(4);

and the statement shall indicate—

(i) the manner, date, time and place of service, or

(ii) where service was effected by post, the date, time and place of posting.

(8) In this rule “first class post” means first class post which has been pre-paid or in respect of which pre-payment is not required.

4.10

(1) Within 14 days of service of an application for an Article 8 order or an application under Schedule 1, each respondent shall file and serve on the other parties an acknowledgement of the application in Form C4 [[^f00331] and, if both parts of question 6 or question 7 (or both) on Form C4 are answered in the affirmative, Form C1A].

(2) Following service of an application to which this Part applies, other than an application under rule 4.4 or for an Article 8 order, a respondent may, subject to paragraph (3) file a written answer, which shall be served on the other parties.

(3) An answer under paragraph (2) shall, except in the case of an application under Articles 44, 50, 53, 57, 62, 63, 64, 67 and 69 be filed and served not less than 2 days before the date fixed for the hearing of the application.

4.11

(1) As soon as practicable after the commencement of specified proceedings, or the transfer of such proceedings to the court, the court shall appoint a guardian ad litem, unless—

(a) such an appointment has already been made by the court which made the transfer and is subsisting, or

(b) the court considers that such an appointment is not necessary to safeguard the interests of the child.

(2) At any stage in specified proceedings a party may apply, without notice to the other parties unless the court directs otherwise, for the appointment of a guardian ad litem.

(3) The court shall grant an application under paragraph (2) unless it considers such an appointment not to be necessary to safeguard the interests of the child, in which case it shall give its reasons; and a note of such reasons shall be taken.

(4) At any stage in specified proceedings the court may, of its own motion, appoint a guardian ad litem.

(5) The proper officer or chief clerk shall, as soon as practicable, notify the parties and any welfare officer of an appointment under this rule or, as the case may be, of a decision not to make such an appointment.

(6) Upon the appointment of a guardian ad litem the proper officer or chief clerk shall, as soon as practicable, notify him of the appointment and serve on him copies of the application and of documents filed under rule 4.18(1).

(7) A guardian ad litem appointed from a panel established by regulations made under Article 60(7) shall not—

(a) be a member, officer or servant of a Board or Trust which, or an authorised person (within the meaning of Article 49(2)) who, is a party to the proceedings;

(b) be, or have been, a member, officer or servant of a Board or Trust or voluntary organisation (within the meaning of Article 74(1) who has been directly concerned in that capacity in arrangements relating to the care, accommodation or welfare of the child during the 5 years prior to the commencement of the proceedings;

(c) be a serving probation officer (except that a probation officer who has not in that capacity been previously concerned with the child or his family and who is employed part-time may, when not engaged in his duties as a probation officer, act as a guardian ad litem).

(8) When appointing a guardian ad litem the court may give consideration to appointing any one who has previously acted as guardian ad litem of the same child.

(9) The appointment of a guardian ad litem under this rule shall continue for such time as is specified in the appointment or until terminated by the court.

(10) When terminating an appointment in accordance with paragraph (9), the court shall give its reasons in writing for doing so.

(11) Where the court appoints a guardian ad litem in accordance with this rule or refuses to make such an appointment or terminates an appointment the court shall record the appointment refusal or termination in Form C41.

4.12

(1) In carrying out his duty under Article 60(2), the guardian ad litem shall have regard to the principle set out in Article 3(2) and the matters set out in Article 3(3)(a) to (f) as if for the word “court” in that section there were substituted the words “guardian ad litem”.

(2) The guardian ad litem shall—

(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and

(b) give such advice to the child as is appropriate having regard to his understanding and, subject to rule 4.13(1)(a), instruct the solicitor representing the child on all matters relevant to the interests of the child, including possibilities for appeal, arising in the course of the proceedings.

(3) Where the guardian ad litem is the Official Solicitor, paragraph 2(a) shall not require him to appoint a solicitor for the child if he intends to act as the child’s solicitor in the proceedings, unless—

(a) the child wishes to instruct a solicitor direct; and

(b) the Official Solicitor or the court considers that he is of sufficient understanding to do so.

(4) Where it appears to the guardian ad litem that the child—

(a) is instructing his solicitor direct, or

(b) intends to, and is capable of, conducting the proceedings on his own behalf,

he shall so inform the court and thereafter—

(i) shall perform all of his duties set out in this rule, other than duties under paragraph (2)(a) and such other duties as the court may direct.

(ii) shall take such part in the proceedings as the court may direct, and

(iii) may, with leave of the court, have legal representation in his conduct of those duties.

(5) The guardian ad litem shall, unless excused by the court, attend all directions appointments in and hearings of the proceedings and shall advise the court on the following matters—

(a) whether the child is of sufficient understanding for any purpose including the child’s refusal to submit to a medical or psychiatric examination or other assessment that the court has power to require, direct or order;

(b) the wishes of the child in respect of any matter relevant to the proceedings, including his attendance at court;

(d) the appropriate timing of the proceedings or any part of them;

(e) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application;

(f) any other matter concerning which the court seeks his advice or concerning which he considers that the court should be informed.

(6) The advice given under paragraph (5) may, subject to any order of the court, be given orally or in writing; and if the advice be given orally, a note of it shall be taken.

(7) The guardian ad litem shall, where practicable, notify any person whose joinder as a party to those proceedings would be likely, in the guardian ad litem’s opinion, to safeguard the interests of the child, of that person’s right to apply to be joined under rule 4.8(2) and shall inform the court—

(a) of any such notification given,

(b) of anyone whom he attempted to notify under this paragraph but was unable to contact, and

(8) The guardian ad litem shall, unless the court otherwise directs, not less than 7 days before the date fixed for the final hearing of the proceedings, file a written report advising on the interests of the child; and the proper officer or chief clerk shall, as soon as practicable, serve a copy of the report on the parties.

(9) The guardian ad litem shall serve and accept service of documents on behalf of the child in accordance with rule 4.9(2)(b) and (3)(b) and, where the child has not himself been served, and has sufficient understanding, advise the child of the contents of any document so served.

(10) The guardian ad litem shall make such investigations as may be necessary for him to carry out his duties and shall, in particular—

(a) contact or seek to interview such persons as he thinks appropriate or as the court directs,

(b) if he inspects records of the kinds referred to in Article 61, bring to the attention of the court and such other persons as the court may direct all such records and documents which may, in his opinion, assist in the proper determination of the proceedings, and

(c) obtain such professional assistance as is available to him which he thinks appropriate or which the court directs him to obtain.

(11) In addition to his duties under other paragraphs of this rule, the guardian ad litem shall provide to the court such other assistance as it may require.

(12) A party may question the guardian ad litem about oral or written advice tendered by him to the court under this rule.

4.13

(1) A solicitor appointed under Article 60(3) or in accordance with rule 4.12(2)(a) shall represent the child—

(a) in accordance with instructions received from the guardian ad litem (unless the solicitor considers, having taken into account the views of the guardian ad litem and any direction of the court under rule 4.12(4), that the child wishes to give instructions which conflict with those of the guardian ad litem and that he is able, having regard to his understanding, to give such instructions on his own behalf in which case he shall conduct the proceedings in accordance with instructions received from the child) or

(b) where no guardian ad litem has been appointed for the child and the condition in Article 60(4)(b) is satisfied, in accordance with instructions received from the child, or

(2) A solicitor appointed under Article 60(3) or in accordance with rule 4.12(2)(a) shall serve and accept service of documents on behalf of the child in accordance with rule 4.9(2)(a) and (3)(a), and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.

(3) Where the child wishes an appointment of a solicitor under Article 60(3) or in accordance with rule 4.12(2)(a) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and the guardian ad litem shall be given an opportunity to make representations.

(4) Where the guardian ad litem wishes an appointment of a solicitor under Article 60(3) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and, if he is of sufficient understanding, the child, shall be given an opportunity to make representations.

(5) When terminating an appointment in accordance with paragraph (3) or (4), the court shall give its reasons for so doing, a note of which shall be taken.

(6) Where the court appoints a solicitor under Article 60(3) or refuses to make such an appointment or terminates an appointment, the court or the proper officer or chief clerk shall record the appointment refusal or termination in Form C42.

4.14

(1) Where the court has directed that a written report be made by a welfare officer, the report shall be filed at or by such time as the court directs or, in the absence of such a direction, at least 14 days before a relevant hearing; and the proper officer or chief clerk shall, as soon as practicable, serve a copy of the report on the parties and any guardian ad litem.

(2) In paragraph (1), a hearing is relevant if the proper officer or chief clerk has given the welfare officer notice that his report is to be considered at it.

(3) After the filing of a report by a welfare officer, the court may, direct that the welfare officer attend any hearing at which the report is to be considered; and

(a) except where such a direction is given at a hearing attended by the welfare officer, the proper officer or chief clerk shall inform the welfare officer of the direction; and

(b) at the hearing at which the report is considered any party may question the welfare officer about his report.

(4) This rule is without prejudice to any power to give directions under rule 4.15.

4.15

(1) In this rule, “party” includes the guardian ad litem and, where a request or a direction concerns a report under Article 4, the welfare officer.

(2) In proceedings to which this Part applies the court may, subject to paragraph (3), give, vary or revoke directions for the conduct of the proceedings, including—

(a) the timetable for the proceedings;

(b) varying the time within which or by which an act is required, by these rules or by other rules of court, to be done;

(d) the appointment of a guardian ad litem, whether under Article 60 or otherwise, or of a solicitor under Article 60(3);

(e) the service of documents;

(f) the submission of evidence including experts’ reports;

(g) the preparation of welfare reports under Article 4;

(h) the transfer of the proceedings to another court;

(i) consolidation with other proceedings.

(3) Directions under paragraph (2) may be given, varied or revoked either—

(a) of the court’s own motion having given the parties notice of its intention to do so and an opportunity to attend and be heard or to make written representations.

(b) on the written request in Form C2 of a party specifying the direction which is sought, filed and served on the other parties, or

(c) on the written request in Form C2 of a party specifying the direction which is sought, to which the other parties consent and which they or their representatives have signed.

(4) In an urgent case the request under paragraph (3)(b) may, with the leave of the court, be made—

(a) orally, or

(b) without notice to the parties, or

(5) On receipt of a written request under paragraph (3)(b) the proper officer or chief clerk shall fix a date for the hearing of the request and give not less than 2 days’ notice in Form C3 to the parties of the date so fixed.

(6) On considering a request under paragraph (3)(c) the court shall either—

(a) grant the request, whereupon the proper officer or chief clerk shall inform the parties of the decision, or

(b) direct that a date be fixed for the hearing of the request, whereupon the proper officer or chief clerk shall fix such a date and give not less than 2 days’ notice in Form C3 to the parties of the date so fixed.

(7) A party may apply in accordance with paragraph 3(b) or (c) for an order to be made under Article 11(3) or, if he is entitled to apply for such an order, under Article 57(1) and paragraphs (4), (5) and (6) shall apply accordingly.

(8) Where a court is considering making, of its own motion, an Article 8 order, or an order under Article 50, 53 or 57, the power to give directions under paragraph (2) shall apply.

(9) Directions of a court which are still in force immediately prior to the transfer of proceedings to which this Part applies to another court shall continue to apply following the transfer, subject to any changes of terminology which are required to apply those directions to the court to which the proceedings are transferred, unless varied or discharged by directions under paragraph (2).

(10) The court shall take a note of the giving, variation or revocation of a direction under this rule and serve, as soon as practicable, a copy of the note on any party who was not present at the giving, variation or revocation.

4.16

(1) Where these rules or other rules of court provide a time period within which or by which a certain act is to be performed in the course of proceedings to which this Part applies, that period may not be extended otherwise than by direction of the court under rule 4.15.

(2) At the—

(a) postponement or adjournment of any hearing or directions appointment in the course of proceedings to which this Part applies, or

(b) conclusion of any such hearing or directions appointment other than one at which the proceedings are determined or so soon thereafter as is practicable, the court shall fix a date upon which the proceedings shall come before the court again for such purposes as the court directs; and the proper officer or chief clerk shall give notice to the parties, and to any guardian ad litem or welfare officer of the date fixed.

(3) At the transfer to a court of proceedings to which this Part applies the court to which the proceedings are transferred shall as soon as possible fix a date upon which the proceedings shall come before the court for such purposes as the court directs; and the proper officer or chief clerk shall give notice to the parties and to any guardian ad litem or welfare officer of the date so fixed.

4.17

(1) Subject to paragraph (2), a party shall attend a directions appointment of which he has been given notice in accordance with rule 4.15(5) unless the court otherwise directs.

(2) Proceedings or any part of them shall take place in the absence of any party, including the child if—

(a) the court considers it in the interests of the child, having regard to the matters to be discussed or the evidence likely to be given, and

(b) the party is represented by a guardian ad litem or solicitor;

and when considering the interests of the child under sub-paragraph (a) the court shall give the guardian ad litem, the solicitor for the child and, if he is of sufficient understanding, the child an opportunity to make representations.

(3) Subject to paragraph (4), where at the time and place appointed for a hearing or directions appointment the applicant appears but one or more of the respondents do not, the court may proceed with the hearing or appointment.

(4) The court shall not begin to hear an application in the absence of a respondent unless—

(a) it is proved to the satisfaction of the court that he received reasonable notice of the date of the hearing; or

(b) the court is satisfied that the circumstances of the case justify proceeding with the hearing.

(5) Where, at the time and place appointed for a hearing or directions appointment one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant.

(6) Where at the time and place appointed for a hearing or directions appointment neither the applicant nor any respondent appears, the court may refuse the application.

(7) [^f00332] The court may hold a directions appointment by telephone or by using any other method of direct oral communication.]

4.18

(1) Subject to paragraphs (4) and (5), in proceedings to which this Part applies a party shall file and serve on the parties, any welfare officer and any guardian ad litem of whose appointment he has been given notice under rule 4.11(5)—

(a) written statements of the substance of the oral evidence which the party intends to adduce at a hearing of, or a directions appointment in, those proceedings, which shall—

(i) be dated,

(ii) be signed by the person making the statement,

(iii) contain a declaration that the maker of the statement believes it to be true and understands that it may be placed before the court; and

(iv) show in the top right-hand corner of the first page—

(a) the initials and surname of the person making the statement,

(b) the number of the statement in relation to the maker,

(d) the party on whose behalf it is filed; and

(b) copies of any documents, including experts’ reports, upon which the party intends to rely at a hearing of, or a directions appointment in, those proceedings, at or by such time as the court directs or, in the absence of a direction, before the hearing or appointment.

(2) A party may, subject to any direction of the court about the timing of statements under this rule, file and serve on the parties a statement which is supplementary to a statement served under paragraph (1).

(3) At a hearing or a directions appointment a party may not, without the leave of the court—

(a) adduce evidence, or

(b) seek to rely on a document,

in respect of which he has failed to comply with the requirements of paragraph (1).

(4) In proceedings for an Article 8 order a party shall—

(a) neither file nor serve any document other than as required or authorised by these rules, and

(b) in completing a form prescribed by these rules, neither give information, nor make a statement, which is not required or authorised by that form,

without the leave of the court.

(5) In proceedings for an Article 8 order no statement or copy may be filed under paragraph (1) until such time as the court directs.

4.19

(1) No person may, without the leave of the court, cause the child to be medically or psychiatrically examined, or otherwise assessed, for the purpose of the preparation of expert evidence for use in the proceedings.

(2) An application for leave under paragraph (1) shall be made in Form C2 and shall, unless the court otherwise directs be served on all parties to the proceedings and on the guardian ad litem.

(3) Where the leave of the court has not been given under paragraph (1), no evidence arising out of an examination or assessment to which that paragraph applies may be adduced without the leave of the court.

4.20

(1) Subject to rule 4.18(2) a document which has been filed or served in proceedings to which this Part applies, may not be amended without the leave of the court which shall, unless the court otherwise directs, be requested in writing.

(2) On considering a request for leave to amend a document the court shall either—

(a) grant the request, whereupon the proper officer or chief clerk shall inform the person making the request of that decision, or

(b) invite the parties or any of them to make representations, within a specified period, as to whether such an order should be made.

(3) A person amending a document shall file it and serve it on those persons on whom it was served prior to amendment and the amendments shall be identified.

4.21

(1) The court may give directions as to the order of speeches and evidence at a hearing or directions appointment, in the course of proceedings to which this Part applies.

(2) Subject to directions under paragraph (1), at a hearing of, or directions appointment in, proceedings to which this Part applies, the parties and the guardian ad litem shall adduce their evidence in the following order—

(a) the applicant,

(b) any party with parental responsibility for the child,

(d) the guardian ad litem,

(e) the child, if he is a party to the proceedings and there is no guardian ad litem.

(3) After the final hearing of proceedings to which this Part applies, the court shall deliver its judgment as soon as is practicable.

(4) When making an order or when refusing an application, the court shall either—

(a) issue a written judgment;

(b) cause the judgment to be recorded by mechanical or electronic means; or

(5) An order made in proceedings to which this Part applies shall be recorded either in the appropriate form in Appendix 1 to these rules or, where there is no such form, in writing.

(6) A copy of an order made in accordance with paragraph (5) shall, as soon as practicable after it has been made, be served by the proper officer or chief clerk on the parties to the proceedings in which it was made and on any person with whom the child is living.

4.22

C.C.R. Order 57 rule 7 shall apply to Article 8 orders as if for paragraph (1) of that rule there were substituted the following—

(1) In the case of an Article 8 order (within the meaning of Article 8(2) of the Children (Northern Ireland) Order 1995) enforceable by committal order under rule 5 the judge or the district judge may, on the application of the person entitled to enforce the order, direct the chief clerk to issue a copy of the order endorsed with a notice in Form 270 and the copy so endorsed shall be served on the respondent personally and no copy of the order shall be issued with any such notice endorsed save in accordance with such direction.

4.23

(1) Where an appeal lies—

(a) to the High Court; or

(b) to a county court specified in the Allocation Order for the purposes of Article 166(4)(a) of the Order of 1995 against the making or refusal to make an order under the Order of 1995—

shall be made in accordance with the following provisions and references to “the court below” are references to the court from which the appeal lies.

(2) The appellant shall file and serve on the parties to the proceedings in the court below, and on any guardian ad litem—

(a) notice of the appeal in writing, setting out the grounds upon which he relies;

(b) a certified copy of the summons in application and of the order appealed against, and of any order staying its execution;

(3) The notice of appeal shall be filed and served in accordance with paragraph (2)(a)—

(a) within 14 days after the determination against which the appeal is brought, or

(b) in the case of an appeal against an order under Article 57(1), within 7 days after the making of the order, or

(4) The documents mentioned in paragraph (2)(b) to (c) shall, subject to any direction of the court to which the appeal is to be brought, be filed and served as soon as practicable after the filing and service of the notice of appeal under paragraph (2)(a).

(5) The applicant shall also send a copy of the notice of appeal to the chief clerk or, as the case may be, to the clerk of petty sessions of the court below.

(6) Subject to paragraph (7), a respondent who wishes—

(a) to contend on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part, or

(b) to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or

shall, within 14 days of receipt of notice of the appeal, file and serve on all other parties to the appeal a notice in writing, setting out the grounds upon which he relies.

(7) No notice under paragraph (5) may be filed or served in an appeal against an order under Article 57.

4.24

(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to—

(a) a party,

(b) the legal representative of a party,

(d) the Legal Aid Department or

(e) a welfare officer

without leave of the judge.

(2) An application for leave shall be made in Form C2 setting out the reasons for the request.

(3) Nothing in this rule shall prevent the notification by the court or the proper officer or chief clerk of a direction under Article 56(1) to the authority concerned.

4.25

(1) Consent for the purposes of—

(a) Article 16(3),

(b) Article 33(3)(c) or (d),

(d) Article 63A(2)(b)(ii) shall be given either—

(i) orally in court, or

(ii) in writing to the court signed by the person giving his consent.

(2) Any written consent given for the purposes of sub-paragraph (2) of Article 57A or Article 63A, shall include a statement that the person giving consent—

(a) is able and willing to give to the child the care which it would be reasonable to expect a parent to give him; and

(b) understands that the giving of consent could lead to the exclusion of the relevant person from the dwelling house in which the child lives.

Exclusion requirements: interim care orders and emergency protection orders

4.25A

(1) This rule applies where the court includes an exclusion requirement in an interim care order or an emergency protection order.

(2) The applicant shall—

(a) prepare a separate statement of evidence in support of the making of the exclusion requirement;

(b) serve the statement personally on the relevant person with a copy of the order containing the exclusion requirement;

(3) The relevant person shall serve the parties to the proceedings with any application which he makes for the variation or discharge of the exclusion requirement.

(4) Where an exclusion requirement ceases to have effect whether—

(a) as a result of the removal of a child under Article 57A(6) or 63A(6).

(b) because of the discharge of the interim care order or emergency protection order, or

the applicant shall inform—

(i) the relevant person,

(ii) the parties to the proceedings,

(iii) (where necessary) the court.

(5) Where the court includes an exclusion requirement in an interim care order or an emergency protection order of its own motion, paragraph (2) shall apply with the omission of any reference to the statement of the evidence.

(6) In this rule—

“the applicant” means the person who initiated the proceedings in which the interim care order or emergency protection order is made;

“exclusion requirement” means one or more of the provisions referred to in Article 57A(3) or, as the case may be, Article 63A(3); and

“relevant person” has the same meaning as in Article 57A(2)(a) or, as the case may be, Article 63A(2)(a).]

Secure accommodation

4.26

In proceedings under Article 44, the court shall, if practicable, arrange for copies of all written reports before it to be made available before the hearing to—

(a) the applicant,

(b) the parent or guardian of the child,

(d) the guardian ad litem; and

(e) the child, unless the court otherwise directs

and copies of such reports may, if the court considers it desirable, be shown to any person who is entitled to notice of the proceedings in accordance with these rules.

Investigation under Article 56

4.27

(1) This rule applies where a direction is given to an appropriate authority by the High Court or a county court under Article 56(1).

(2) On giving a direction the court shall adjourn the proceedings and shall record the direction in Form C35.

(3) A copy of the direction recorded under paragraph (2) shall, as soon as practicable after the direction is given, be served by the proper officer or chief clerk on the parties to the proceedings in which the direction is given and where the appropriate authority is not a party, on that authority.

(4) When serving the copy of the direction on the appropriate authority the proper officer or chief clerk shall also serve copies of such of the documentary evidence which has been, or is to be, adduced in the proceedings as the court may direct.

(5) Where an authority informs the court of any of the matters set out in Article 56(3)(a) to (c) it shall do so in writing.

[ APPLICATIONS RELATING TO THE COUNCIL REGULATION AND THE 1996 HAGUE CONVENTION

Interpretation

4.28

(1) In rules 4.28 to 4.39—

“Central Authority” means, in relation to Northern Ireland, the Department of Justice;

“Contracting State” means a State party to the 1996 Hague Convention;

“parental responsibility” has the meaning given in—... Article 1(2) of the 1996 Hague Convention in relation to proceedings under that Convention; ...

(2) In rules 4.29 to 4.38, references to the court of another Contracting State include authorities of Contracting States which have jurisdiction to take measures directed to the protection of the person or property of the child within the meaning of the 1996 Hague Convention.

Transfer of proceedings under Article 15 of the Council Regulation or under Article 8 of the 1996 Hague Convention

4.29

(1) Where a court is considering the transfer of proceedings to the court of another ... Contracting State under rules 4.30 to 4.32 it will—

(a) fix a date for a hearing for the court to consider the question of transfer; and

(b) give directions as to the manner in which the parties may make representations.

(2) The court may, with the consent of all parties, deal with the question of transfer without a hearing.

(3) Directions which are in force immediately prior to the transfer of proceedings to a court in another ... Contracting State under rules 4.30 to 4.32 will continue to apply until the court in that other State accepts jurisdiction in accordance with the provisions of ... the 1996 Hague Convention ..., subject to any variation or revocation of the directions.

(4) The proper officer or chief clerk will—

(a) take a note of the giving, variation or revocation of directions under this rule; and

(b) as soon as practicable serve a copy of the directions order on every party.

(5) A register of all applications and requests for transfer of jurisdiction to or from another ... Contracting State will be kept by the proper officer.

Application by a party for transfer of the proceedings

4.30

(1) A party may apply to the court ... under Article 8(1) of the 1996 Hague Convention—

(a) to stay the proceedings, or a specified part of the proceedings, and to invite the parties to introduce a request before a court of another ... Contracting State; or

(b) to make a request to a court of ... another Contracting State to assume jurisdiction for the proceedings, or a specified part of the proceedings.

(2) An application under paragraph (1) must be made—

(a) to the court in which the relevant parental responsibility proceedings are pending; and

(b) in Form C1 or C2 as appropriate.

(3) The applicant must file the application and serve it on the respondent not less than 6 weeks before the hearing of the application.

Application by a court of another Member State or another Contracting State for transfer of the proceedings

4.31

(1) This rule applies where a court of ... another Contracting State makes an application ... under Article 9 of the 1996 Hague Convention that the court having jurisdiction in relation to the proceedings transfer the proceedings, or a specified part of the proceedings, to the applicant court.

(2) When the court receives the application, the proper officer or chief clerk will—

(a) as soon as practicable, notify the Central Authority for Northern Ireland of the application; and

(b) serve the application, and notice of the hearing on all other parties in Northern Ireland not less than 5 days before the hearing of the application.

Exercise by the court of its own motion of powers to seek to transfer the proceedings

4.32

(1) The court having jurisdiction in relation to the proceedings may exercise its powers of its own motion under ... Article 8 of the 1996 Hague Convention in relation to the proceedings, or a specified part of the proceedings.

(2) Where the court proposes to exercise its powers, the proper officer or chief clerk will give the parties not less than 5 days notice of the hearing.

Application to High Court to make request ... or Article 9 of the 1996 Hague Convention to request transfer of jurisdiction

4.33

(1) An application from an interested person for the court to request transfer of jurisdiction in a matter concerning a child from ... another Contracting State ... or Article 9 of the 1996 Hague Convention ... must be made to the Office of Care and Protection and heard in the High Court.

(2) An application must be made without notice to any other person and the court may give directions about joining any other party to the application.

(3) Where there is agreement between the court and the court or competent authority to which the request under paragraph (1) is made to transfer the matter to the courts of Northern Ireland, the court will consider with that other court or competent authority the specific timing and conditions for the transfer.

(4) Upon receipt of agreement to transfer jurisdiction from the court or other competent authority in the ... Contracting State to which the request has been made, the proper officer will serve on the applicant a notice that jurisdiction has been accepted by the courts of Northern Ireland.

(5) The applicant must attach the notice referred to in paragraph (3) to any subsequent application in relation to the child.

(6) Nothing in this rule requires an application with respect to a child commenced following a transfer of jurisdiction to be made to or heard in the High Court.

(7) Upon allocation, the court to which the proceedings are allocated must forthwith fix a directions hearing to consider the future conduct of the case.

Procedure where the court receives a request from the authorities of another ... Contracting State to assume jurisdiction in a matter concerning a child

4.34

(1) Where any court other than the High Court receives a request to assume jurisdiction in a matter concerning a child from a court or other authority which has jurisdiction in another ... Contracting State, that court must forthwith refer the request to a judge of the High Court for a decision regarding acceptance of jurisdiction to be made.

(2) Upon the High Court agreeing to the request under paragraph (1), the proper officer will notify the parties to the proceedings before the other ... Contracting State of that decision, and the case must be allocated as if the application had been made in Northern Ireland.

(3) Upon allocation, the court to which the proceedings are allocated must forthwith fix a directions hearing to consider the future conduct of the case.

(4) The proper officer will serve notice of the directions hearing on all parties to the proceedings in the other ... Contracting State no later than 5 days before the date of that hearing.

Service of the court’s order or request relating to transfer of jurisdiction under ... the 1996 Hague Convention

4.35

—The proper officer will serve an order or request relating to transfer of jurisdiction on all parties, the Central Authority of the other ... Contracting State, and the Central Authority for Northern Ireland.

Questions as to the court’s jurisdiction or whether the proceedings should be stayed

4.36

(1) If at any time after issue of an application it appears to the court that ... Article 13 of the 1996 Hague Convention it is or may be required to stay the proceedings or to decline jurisdiction, the court must—

(a) stay the proceedings; and

(b) fix a date for a hearing to determine jurisdiction or whether there should be a stay or other order.

(2) The proper officer or chief clerk will serve notice of the hearing referred to at paragraph (1)(b) on the parties to the proceedings.

(3) The court must, in writing—

(a) give reasons for its decision under paragraph (1); and

(b) where it makes a finding of fact, state such finding.

(4) The court may with the consent of all the parties deal with any question as to the jurisdiction of the court, or as to whether the proceedings should be stayed, without a hearing.

Request for consultation as to contemplated placement of child in Northern Ireland

4.37

(1) This rule applies to a request made—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) under Article 33 of the 1996 Hague Convention by a court in another Contracting State,

for consultation on or consent to the contemplated placement of a child in Northern Ireland.

(2) Where the court receives a request directly from a court in another ... Contracting State, the court must, as soon as practicable after receipt of the request, notify the Central Authority for Northern Ireland of the request and take the appropriate action under paragraph (4).

(3) Where it appears to the proper officer or chief clerk that no proceedings relating to the child are pending before a court in Northern Ireland, the proper officer or chief clerk, as the case may be, must inform the Central Authority for Northern Ireland of that fact and forward to the Central Authority all documents relating to the request sent by the court in the other ... Contracting State.

(4) Where the court receives a request forwarded by the Central Authority for Northern Ireland, the court must, as soon as practicable after receipt of the request, either—

(a) where proceedings relating to the child are pending before the court, fix a directions hearing; or

(b) where proceedings relating to the child are pending before another court in Northern Ireland send a copy of the request to that court and notify the Central Authority for Northern Ireland of this action.

Request made by court in Northern Ireland for consultation as to contemplated placement of child in another ... Contracting State

4.38

(1) This rule applies where the court is contemplating the placement of a child in ... another Contracting State under Article 33 of the 1996 Hague Convention, and proposes to send a request for consultation with or for the consent of the Central Authority or other authority having jurisdiction in the other State in relation to the contemplated placement.

(2) In this rule, a reference to “the request” includes a reference to a report prepared for the purposes of Article 33 of the 1996 Hague Convention where the request is made under that Convention.

(3) Where the court sends the request directly to the Central Authority or other authority having jurisdiction in the other State, it must at the same time send a copy of the request to the Central Authority for Northern Ireland.

(4) The court may send the request to the Central Authority for Northern Ireland for onward transmission to the Central Authority or other authority having jurisdiction in the other ... State.

(5) The court should give consideration to the documents which should accompany the request.

Application for a declaration as to the extent, or existence, of parental responsibility in relation to a child under Article 16 of the 1996 Hague Convention

4.39

(1) Any interested person may apply for a declaration—

(a) that a person has, or does not have, parental responsibility for a child; or

(b) as to the extent of a person’s parental responsibility for a child,

where the question arises by virtue of the application of Article 16 of the 1996 Hague Convention.

(2) An application for a declaration as to the extent, or existence of a persons parental responsibility for a child by virtue of Article 16 of the 1996 Hague Convention must be made in the Office of Care and Protection and heard in the High Court.

(3) An application under paragraph (1) may not be made where the question raised is otherwise capable of resolution in any other family proceedings in respect of the child.]

[ PART IVA — FREEING FOR ADOPTION AND ADOPTION ORDERS

INTRODUCTORY

Interpretation

4A.1

(1) In this Part and Parts IVB and IVC, unless the context otherwise requires—

“the 1976 Act” means the Adoption Act 1976[^f00336];

“the 1978 Act” means the Adoption (Scotland) Act 1978[^f00337];

“the Order of 1987” means the Adoption (Northern Ireland) Order 1978[^f00338] and—a reference to an Article by number is a reference to that Article as numbered in that Order; andexpressions which are defined in the Order of 1987 have the same meaning as in that Order;

“adoption agency” means a Board or a registered adoption society which is an accredited body for the purposes of the Convention[^f00339];

“parental responsibility” has the same meaning as in the Order of 1995;

“application” means an application made under or by virtue of the Order of 1987 or under these Rules and “applicant” shall be construed accordingly;

“Board” means a Health and Social Services Board or, as the case may be, a Trust;

“CA of the receiving State” means, in relation to a Convention country[^f00340] other than the United Kingdom, the Central Authority of the receiving State;

“CA of the State of origin” means, in relation to a Convention country other than the United Kingdom, the Central Authority of the State of origin;

“Central Authority” means the Department of Health, Social Services and Public Safety;

“the child” means the person whom the applicant for an adoption order or an order authorising a proposed foreign adoption proposes to adopt, or, as the case may be, the person the adoption agency proposes should be freed for adoption;

“Convention” means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993;

“Convention country” means any country or territory in which the Convention is in force;

“Convention proceedings” means proceedings in the High Court or a county court for a Convention adoption order or in connection with a Convention adoption order or a Convention adoption[^f00341];

“Hague Convention Regulations” means the Intercountry Adoption (Hague Convention) Regulations (Northern Ireland) 2003[^f00342];

“interim order” means an order under Article 26;

“the Master” means the Master (Care and Protection) or, as the case may be, the chief clerk;

“medical practitioner” has the meaning assigned by Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972[^f00343];

“the Office” means the Office of Care and Protection or, where appropriate, the office of the chief clerk ...;

“order authorising a proposed foreign adoption” means an order under Article 57;

“receiving State” means the State in which it is proposed that the child will become habitually resident;

“regular armed forces of the Crown” means the Royal Navy, the Regular Armed Forces as defined by section 225 of the Army Act 1955[^f00344], the Regular Air Force as defined by section 223 of the Air Force Act 1955[^f00345], the Queen Alexandra’s Royal Naval Nursing Service and the Women’s Royal Naval Service;

“State of origin” means the State in which the child is habitually resident.

Proceedings

4A.2

Any hearing of an application shall be dealt with in chambers unless the court otherwise directs.

FREEING FOR ADOPTION

Commencement of proceedings under Article 17

4A.3

(1) An application under Article 17 (freeing child for adoption with parental agreement) for an order freeing a child for adoption shall be made in Form A1.

(2) The applicants shall be the adoption agency and each parent or guardian of the child and the respondents shall be—

(a) any Board or voluntary organisation that has parental responsibility for, is looking after, or is caring for the child;

(b) any person (not being an applicant) liable by virtue of any order or agreement to contribute to the maintenance of the child; and

(3) The court may at any time direct that any other person or body be made a respondent to the application.

(4) On filing the application the applicant shall pay the appropriate fee and supply three copies of:—

(a) Form A1, together with any other documents required to be supplied under this Part, and

(b) a report, in writing, covering all the relevant matters specified in Part I of Appendix 4.

Commencement of proceedings under Article 18

4A.4

(1) An application under Article 18 (Freeing child for adoption without parental agreement) for an order freeing a child for adoption shall be made in Form A2.

(2) The applicant shall be the adoption agency and the respondents shall be each parent or guardian of the child and those persons prescribed by rule 4A.3(2).

(3) The court may at any time direct that any other person or body be made a respondent to the application.

(4) There shall be attached to the application a statement of the facts upon which the applicant intends to rely for the purpose of satisfying the court that the agreement of each parent or guardian of the child to the making of an adoption order ought to be dispensed with on a ground specified in Article 16(2).

(5) Where the applicant has been informed by a person with whom the child has been placed for adoption that he wishes his identity to remain confidential, the statement of facts supplied under paragraph (4) shall be framed in such a way as not to disclose the identity of that person.

(6) Except where the request for dispensation is based on the ground that the parent or guardian cannot be found, the Master shall, as soon as practicable, inform the parent or guardian of the request to dispense with his agreement and shall send him a copy of the statement supplied under paragraph (4).

(7) On filing the application the applicant shall pay the appropriate fee and supply three copies of:—

(a) Form A2, together with any other documents required to be supplied under this Part;

(b) a report in writing covering all the relevant matters specified in Part I of Appendix 4;

Appointment of guardian ad litem

4A.5

(1) As soon as practicable after the application has been filed, the Master shall appoint a guardian ad litem of the child, and shall send to him a copy of the application and any documents attached thereto and of the report supplied by the applicant and that report shall be confidential.

(2) The guardian ad litem shall not be a member or employee of the applicant or any respondent body nor have been involved in the making of any arrangements for the adoption of the child.

Duties of the guardian ad litem

4A.6

(1) The guardian ad litem shall:—

(a) ensure, so far as is reasonably practicable, that any agreement to the making of an adoption order is given freely and unconditionally and with full understanding of what is involved;

(b) confirm that the parent or guardian has been given an opportunity of making a declaration under Article 17(5), that he prefers not to be involved in future questions concerning the adoption of the child;

(d) where it is proposed to free for adoption a child whose parents were not married to each other at the time of his birth and whose father is not his guardian, take all reasonable steps to identify any person claiming to be the father in order to be able to advise the court—

(i) of that person’s views;

(ii) of whether that person intends to apply for an order under Article 7(1) or 10 of the Order of 1995;

(iii) of any matter relevant to the determination of an application.

(e) on completing his investigations make a report in writing to the court, drawing attention to any matters which, in his opinion, may be of assistance to the court in considering the application, and shall notify the applicant that he has done so.

(2) With a view to safeguarding the interests of the child before the court, the guardian ad litem shall, so far as is reasonably practicable—

(a) investigate—

(i) the matters alleged in the application, the report supplied by the applicant and, where appropriate, the statement of facts supplied under rule 4A.4; and

(ii) any other matters which appear to him to be relevant to the making of an order freeing the child for adoption;

(b) advise whether, in his opinion, the child should be present at the hearing of the application; and

(3) With a view to obtaining the directions of the court on any matter, the guardian ad litem may at any time make such interim report to the court as appears to him to be necessary and in such a case the Master shall notify the applicant.

(4) The court may, at any time before the final determination of the application, require the guardian ad litem to perform such further duties as the court considers necessary.

(5) The guardian ad litem shall attend any hearing of the application if so required by the court.

(6) Any report made to the court under this rule shall be confidential.

Agreement

4A.7

(1) Any document signifying the agreement of a person to the making of an adoption order shall be in Form A3, and, shall, if executed in Northern Ireland, be witnessed by a Lay Magistrate.

(2) If the document is executed in Scotland it shall be witnessed by a Justice of the Peace or a Sheriff.

(3) If the document is executed in England and Wales it shall be witnessed by a Justice of the Peace.

(4) If the document is executed outside the United Kingdom it shall be witnessed by one of the following persons—

(a) any person for the time being authorised by law in the place where the document is executed to administer an oath for any judicial or other legal purpose;

(b) a British consular officer;

(d) if the person executing the document is serving in any of the regular armed forces of the Crown, an officer holding a commission in any of those forces.

(5) If the document is executed by a person outside Northern Ireland before the commencement of the proceedings it shall be filed with the application.

Notice of hearing

4A.8

(1) Within 14 days of being notified by the guardian ad litem that he has made his report to the court, the applicant shall apply to the Master to fix a date for the hearing of the application.

(2) On an application under paragraph (1) the Master shall fix a date and time for the hearing and shall take account of any directions given under paragraph (5) and rule 4A.10(3).

(3) The Master shall inform the applicant and the guardian ad litem of the date and time fixed for the hearing and the applicant shall serve notice of the hearing on all the parties in Form A4.

(4) Anyone who wishes to object to the making of an order freeing the child for adoption shall, within 14 days of the date of service on him of the notice of hearing, give the Master written notice of his intention to object in Form A5.

(5) If at any stage before the hearing of the application it appears to the court that directions for the hearing are required the court may give such directions as it considers necessary.

Objections

4A.9

(1) Where the Master receives notice of objection under rule 4A.8 he shall notify the judge, the applicant or his solicitor and the guardian ad litem and the judge shall give such directions as appear appropriate.

(2) The judge may direct that the person who served such notice of objection shall appear before him in his chambers on a date fixed by him and, upon hearing the nature or grounds for objection made by him or his legal representative on his behalf, may give such directions or make such orders as appear just.

The hearing

4A.10

(1) Subject to any directions given under rule 4A.9(2), on the hearing of the application, any person upon whom notice is required to be served under rule 4A.8 may attend and be heard on the question whether an order freeing the child for adoption should be made.

(2) Any member or employee of a Board, adoption agency or other body which is a party to the proceedings may address the court if he is duly authorised in that behalf.

(3) Where the court has been informed by the applicant that the child has been placed with a person (whether alone or jointly with another) for adoption and that person wishes his identity to remain confidential, the proceedings shall be conducted with a view to securing that any such person is not seen by or made known to any respondent who is not already aware of his identity, except with his consent.

(4) Evidence may be given orally or by affidavit, but where the evidence of any person is on affidavit, the judge may require such person to give oral evidence.

(5) Subject to paragraph (6), the judge shall not make an order freeing the child for adoption except after the personal attendance before him of the child and of a representative of the applicant duly authorised in that behalf.

(6) If there are special circumstances which, having regard to the report of the guardian ad litem, appear to the court to make the attendance of the child unnecessary, the court may direct that the child need not attend.

(7) If there are special circumstances which appear to the court to make the attendance of any other party desirable, the court may direct that that party shall attend.

Proof of identity of child, etc.

4A.11

(1) Where the child who is the subject of the proceedings is identified in the application by reference to a birth certificate which is the same, or relates to the same entry in the Register of Births, as a birth certificate exhibited to a form of agreement, the child so identified shall be deemed, unless the contrary appears, to be the child to whom the form of agreement refers.

(2) Where the child has previously been adopted, paragraph (1) shall have effect as if for the references to a birth certificate and to the Register of Births there were substituted respectively references to a certified copy of an entry in the Adopted Children Register and to that Register.

(3) Where the precise date of the child’s birth is not proved to the satisfaction of the court, the court shall determine the probable date of his birth and the date so determined may be specified in the order freeing the child for adoption as the date of his birth.

(4) Where the place of birth of the child cannot be proved to the satisfaction of the court but it appears probable that the child was born in the United Kingdom, the Channel Islands or the Isle of Man, he may be treated as having been born in the registration district in which the court sits, and in any other case (where the country of birth is not proved) the particulars of the country of birth may be omitted from the order freeing the child for adoption.

Application for revocation of order freeing a child for adoption

4A.12

(1) An application under Article 20(1) for an order revoking an order freeing the child for adoption shall be made in Form A6.

(2) Notice of proceedings in Form A7 shall be served by the applicant on all parties and on any adoption agency which has parental responsibility for the child by virtue of Articles 17, 18 or 21, sections 18 or 21 of the 1976 Act or sections 18 or 21 of the 1978 Act save that notice shall not be served on a party to the proceedings who was joined as a party by virtue of rule 4A.3(2)(a).

(3) As soon as practicable after receipt of the application, the Master shall list the case for hearing by a judge and shall appoint a guardian ad litem of the child in accordance with rule 4A.5 and shall send to him a copy of the application and any documents attached thereto.

(4) The guardian ad litem shall have the same duties as if he had been appointed under rule 4A.5 but as if in that rule:—

(a) the reference to an order freeing the child for adoption was a reference to the revocation of an order freeing the child for adoption; and

(b) each reference to the report supplied by the applicant was omitted.

Substitution of one adoption agency for another

4A.13

(1) An application under Article 21 shall be made in Form A8.

(2) Notice of any order made under Article 21 shall be sent by the court to the court which made the order under Articles 17, 18 or 21 (if a different court), or under section 18 or 21 of the 1976 Act or under sections 18 or 21 of the 1978 Act and to any former parent of the child.

ADOPTION ORDERS

Application for a serial number

4A.14

Any person proposing to apply to the court for an adoption order who wishes his identity to be kept confidential, may, before commencing proceedings, apply to the Master for a serial number to be assigned to him for the purpose of identifying him in the proposed proceedings and a number shall be assigned to him accordingly.

Commencement of proceedings

4A.15

(1) An application for an adoption order shall be made in Form A9.

(2) The respondents shall be—

(a) each parent or guardian (not being an applicant) of the child, unless the child is free for adoption;

(b) any adoption agency having parental responsibility for the child by virtue of Articles 17, 18 or 21, or under sections 18 or 21 of the 1976 Act or sections 18 or 21 of the 1978 Act;

(c) any adoption agency named in the application or in any form of agreement to the making of the adoption order as having taken part in the arrangements for the adoption of the child;

(d) any Board to whom the applicant has given notice under Article 22 of his intention to apply for an adoption order;

(e) any Board or voluntary organisation that has parental responsibility for, is looking after, or is caring for, the child;

(f) any person (not being an applicant) liable by virtue of any order or agreement to contribute to the maintenance of the child;

(g) where the applicant proposes to rely on Article 15(1)(b)(ii), the spouse of the applicant; and

(h) the child.

(3) The court may at any time direct that any other person or body be made a respondent to the application.

(4) Notice to the Board for the purposes of Article 22(1) may be given in Form A10.

(5) On filing the application the applicant shall pay the appropriate fee and supply three copies of—

(a) Form A9, together with any other documents required to be supplied under this Part, and

(b) where the child was not placed for adoption with the applicant by an adoption agency, save where the applicant or one of the applicants is a parent of the child, reports by a medical practitioner made not more than three months earlier on the health of the child and of each applicant, covering the matters specified in Part II of Appendix 4.

Statement of facts in dispensation cases

4A.16

(1) Where the child is not free for adoption and the applicant intends to request the court to dispense with the agreement of a parent or guardian of the child on any of the grounds specified in Article 16(2), the request shall be included in the application and there shall be attached to the application three copies of a statement of facts on which the applicant intends to rely.

(2) Where a serial number has been assigned to the applicant under rule 4A.14 the statement of facts supplied under paragraph (1) shall be framed in such a way as not to disclose the identity of that person.

(3) Except where the request for dispensation is based on the ground that the parent or guardian cannot be found, the Master shall, as soon as practicable, inform the parent or guardian of the request to dispense with his agreement and shall send him a copy of the statement supplied under paragraph (1).

Appointment of guardian ad litem

4A.17

(1) As soon as practicable after the application has been filed, the Master shall appoint a guardian ad litem of the child and shall send to him a copy of the application, together with any documents attached thereto.

(2) The guardian ad litem shall not be a member or employee of the applicant or any respondent body nor have been involved in the making of any arrangements for the adoption of the child.

(3) Where the child is free for adoption, the guardian ad litem shall, where practicable, be the same person who was appointed under rule 4A.5.

Duties of guardian ad litem

4A.18

(1) With a view to safeguarding the interests of the child before the court the guardian ad litem shall—

(a) ensure so far as is reasonably practicable that any agreement to the making of the adoption order is given freely and unconditionally and with full understanding of what is involved;

(b) investigate all the circumstances relevant to any such agreement;

(i) the matters alleged in the application, any report supplied under rule 4A.15(5)(b) and, where appropriate, the statement of facts supplied under rule 4A.16;

(ii) any other matters which appear to him to be relevant to the making of an adoption order;

(d) on completing his investigations make a report in writing to the court, drawing attention to any matters which, in his opinion, may be of assistance to the court in considering the application, and shall notify the applicant that he has done so;

(e) advise whether, in his opinion, the child should be present at the hearing of the application; and

(f) perform such other duties as appear to him to be necessary or as the court may direct.

(2) Paragraphs (3) to (6) of rule 4A.6 shall apply to a guardian ad litem appointed under this rule as they apply to a guardian ad litem appointed under that rule.

Agreement

4A.19

(1) Save with the leave of the court, any document signifying the agreement of a person to the making of the adoption order shall be in Form A11 and shall, if executed in Northern Ireland, be witnessed by a Lay Magistrate.

(2) If the document is executed outside Northern Ireland it shall be witnessed by one of the persons specified in rule 4A.7(2), (3) or (4), according to the country in which it is executed.

(3) If the document is executed outside Northern Ireland before the commencement of the proceedings it shall be filed with the application.

Notice of hearing

4A.20

(1) Within 14 days of being notified by the guardian ad litem that he has made his report to the court, the applicant shall apply to the Master to fix a date for the hearing of the application.

(2) On an application under paragraph (1) the Master shall fix a date and time for the hearing and shall take account of any directions given under paragraph (7).

(3) The Master shall inform the applicant and the guardian ad litem of the date and time fixed for hearing and the applicant shall, unless he desires his identity to be kept confidential, serve notice of the hearing on all the parties in Form A12.

(4) Where the applicant desires that his identity be kept confidential he shall, in lieu of serving a notice in Form A12, serve upon the parties a notice of presentation in Form A13.

(5) If the applicant has no solicitor acting for him the notice in Form A12 or Form A13 shall be signed by the Master.

(6) Anyone wishing to object to the making of an adoption order, shall within 14 days of the date of service on him, of the notice of hearing or as the case may be the notice of presentation give the Master written notice of his intention to object in Form A14 or Form A15 as the case may be, quoting the serial number of the application.

(7) If at any stage before the hearing of the application it appears to the court that directions for the hearing are required the court may give such directions as it considers necessary.

Objections

4A.21

(1) Where the Master receives notice of objection under rule 4A.20(6) he shall notify the judge, the applicant (or his solicitor) and the guardian ad litem, and the judge shall give such directions as appear appropriate.

(2) The judge may direct that the person who served such notice of objection shall appear before him in his chambers on a date fixed by him and upon hearing the nature or grounds for objection made by him or by his legal representative on his behalf, give such directions or make such orders as appear just.

Reports by adoption agency or Board

4A.22

(1) Where the child was placed for adoption with the applicant by an adoption agency, that agency shall supply, within six weeks of receipt of the notice of hearing under rule 4A.20, three copies of a report in writing covering the matters specified in Part I of Appendix 4.

(2) Where the child was not placed for adoption with the applicant by an adoption agency, the Board to whom the notice under Article 22 of the Order was given shall supply, within six weeks of receipt of the notice of hearing or notice of presentation under rule 4A.20, three copies of a report in writing covering the matters specified in Part I of Appendix 4.

(3) The court may request a further report under paragraph (1) or (2) and may indicate any particular matters it requires such a further report to cover.

(4) The Master shall send a copy of any report supplied under paragraph (1) or (2) to the guardian ad litem.

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