LayerSlider – Conveyancing 26Jan18 – Base

Case Law Update – Judgement clarifies appeal extension considerations for Family Care Centre Orders

This case is important for parents whose children have been taken into care or freed for adoption; clarification has been given on the points considered when a Judge must decide whether or not to accept of an Appeal of an Order in the Family Care Centre of the High Court when that appeal is made beyond the prescribed time limits.

The significance of the Judgement in JG’s application [2014] NIFam 2 is that the time limit for an Appeal from the making of an Order in the Family Care Centre of the High Court is 14 days and this case represents an examination of circumstances in which a Judge will exercise his discretion to accept an Appeal outside the time limited. This is strictly in respect of Care Proceedings. This is where a child has been placed in the care of either a Kinship Placement or the Trust. The time limit however for an Appeal in respect of a Freeing Order which means a decision to make a Freeing Order to allow the child to be freed for adoption is 21 days. The Court at all times enjoys a discretion to extend the time for the filing of the Appeal. In this case the period out of time for the Care Order Appeal was 58 days and the period out of time for the Freeing Order was 51 days. The Judge decided to list the main factors to be considered and he listed 8 factors.

1. The importance of decisions under Appeal.

2. Procedure Rules are there to be obeyed and not lightly set aside.

3. The delay in this case could not be characterised as enormous. The delay is less than two months which is not inordinate.

4. The impact of delay on the child.

5. The better the reason for the delay the more likely the Court will be prepared to view this reason as a positive factor in favour of extending time.

6. The merits of the Appeal will enter a Court’s calculations.

7. The case has already had a hearing at the lower Court. It is not a case where no hearing has taken place or been provided. Neither party however participated in the original hearing and this was taken into account by the Judge. There was an absence of adversarial testing of the Trust case.

8. The Court has to take into account the Convention rights of the parties, i.e. Article 6 for a fair hearing and Article 8 – a right to family life.

Overall the Court makes it clear an extension of time to Appeal will not be granted for the asking.

This is an important case from the perspective of parents who need time to come to terms with the original Orders made. They may not readily want to revisit the issues with their Solicitor or Barrister. Fourteen days for the Care Proceedings and 21 days is a relatively short period of time. However, this case makes it clear that the Judge will exercise discretion and in doing so will take into account these factors.

Anne Marie Kelly

Director MKB Law

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