Foyle Health and Social Services Trust v LM (01 April 04)
 The application in these proceedings is for Care Orders in respect of the children L1 and L2 pursuant to Article 50 of the Children (Northern Ireland) Order 1995 which provides as follows:-
(2) A court may only make a care or a supervision order if it is satisfied –
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made,
not being what it would be reasonable to expect a parent to give to him.
The burden of proof
 In this, as in most civil cases the general rule is that "he who asserts must prove". It is for the applicant Trust in this case to establish all the pre-conditions and other facts entitling it to the order sought. This was reaffirmed by Lord Nicholls in Re H & R (Child Sex Abuse: Standard of Proof)  1 FLR 80. At page 95E he stated the following:
"The power of the court to make a care or supervision order only arises if the court is 'satisfied' that the criteria stated in Section 31(2) exist. The expression 'if the court is satisfied', here and elsewhere in the Act, envisages that the court must be judicially satisfied on proper material. There is also inherent in the expression an indication of the need for the subject matter to be affirmatively proved. If the court is left in a state of indecision the matter has not been established to the level, or standard, needed for the court to be 'satisfied'. Thus in Section 31(2), in order for the threshold to be crossed, the conditions set out in paras (a) and (b) must be affirmatively established to the satisfaction of the court."
Section 31(2) of the Children Order 1989 and Article 50(2) of the Children (NI) Order 1995 are in identical terms.
The standard of proof
 This matter was also considered in Re H & R. In that case the local authority had failed to establish allegations of sex abuse of the child, who was the subject of the application, by her mother's partner. This followed his acquittal in the Crown Court on charges arising out of the same allegations. The court therefore was obliged to proceed on the basis that the child had not suffered significant harm in the past. In that case the core question, upon which the House divided by 3:2 was the approach to be adopted in respect of future risk, ie. whether or
not unproven allegations of mal-treatment could form the basis for a finding by the court that either limb of Section 31(2)(a) was established. Lord Nicholls of Birkenhead stated the following at pages 95H-97C:
The standard of proof.
Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the 1989 Act, ss 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court
concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury.
A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under-age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a serious degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.
It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in Re Dellow's Will Trusts, Lloyd's Bank v Institute of Cancer Research  1 WLR 451 at p 455:
The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.
This substantially accords with the approach adopted in authorities such as the well-known judgment of Morris LJ in Hornal v Neuberger Products Ltd  1 QB 247 at p 266.
This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.
No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard higher than the preponderance of probability. Similar suggestions have been made recently regarding proof of allegations of sexual abuse of children: see Re G (No 2) (A Minor) (Child Abuse: Evidence)  1 FLR 314 at p 321, and Re W (Minors) (Sexual Abuse: Standard of Proof)  1 FLR 419 at p 429.
So I must pursue this a little further. The law looks for probability, not certainty.
Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings
. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, a lower standard having the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it would apply. Herein lies a difficulty.
If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction.
But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change.
I therefore agree with the recent decisions of the Court of Appeal in several cases involving the care of children, to the effect that the standard of proof is the ordinary civil standard of balance of probability.
 He made clear that there should be no difficulty in applying the standard when considering the first limb of Article 50(2)(a) because it deals with an existing state of affairs, namely, that the child is suffering significant harm. He described the relevant time for the purposes of tha
consideration and made clear that whether the child was suffering significant harm is to be decided by the court "On the basis of the facts admitted or proved before it.
The balance of probabilities standard applies to proof of the facts". In dealing with the second limb, namely the risk of significant harm arising in the future he stated:
The same approach applies to the second limb of Section 31(2)(a). This is concerned with evaluating the risk of something happening in the future: aye or no, is there a real possibility that the child will suffer significant harm?
Having heard and considered the evidence and decided any disputed questions of relevant fact upon the balance of probability,
the court must reach a decision on how highly it evaluates the risk of significant harm befalling the child, always remembering upon whom the burden of proof rests.
(Doc) Family Division Court Northern Ireland - RE: (Care Order: Freeing Order: Parents with a learning Disability) Justice Gillen.
The Trust case however was that once G was born, Mr and Mrs X's attitude was that they did not need professionals in their lives.
Difficulties with regards to their cooperation and ability to take advice, in the opinion of the Trust, placed G in a situation where her needs were not being adequately met and an Emergency Protection Order was sought and granted on 12 December 2004 with subsequent Interim Care Orders with G being placed in foster care.
(Doc) Family Division Court Northern Ireland - RE: (Residence Order)
(11 October 2005) Justice McLaughlin
The Legal Authorities and Guiding Principles
The applications of each party for a residence order fall to be determined in accordance with the Children (NI) Order 1995.
Jurisdiction to make such an order is found in Article 8 and such proceedings are subject to overall consideration of the child's welfare.
Article 3 requires the court when determining any question with respect to the
upbringing of a child to have regard to the principle that the child's welfare "shall be the court's paramount consideration".
The classic dictum of Lord MacDermott in the case of J v C  1 All ER 788 at 820-821 remain of continuing relevance and importance even in the light of the many radical changes brought about by the 1995 Order.
In that case he stated that the requirement to treat the child's interests as paramount "connotes a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of child's welfare as that term is now understood.
That is the first consideration because it is of first importance and the paramount consideration because it rules on and determines the course to be followed".
Further by Article 3(3) and (4) the court is directed, when considering whether to make an Article 8 Order, to have regard in particular to certain factors.
These factors are now referred to as the welfare check list and are in the following terms:
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) His physical, emotional and educational needs;
(c) The likely effect on him of any change in his circumstances;
(d) His age, sex, background and any characteristics of his which the court considers relevant;
(e) Any harm which he has suffered or is at risk of suffering;
(f) How capable of meeting his needs is each of parents and any other person in relation to whom the court considers the question to be relevant;
(g) The range of powers available to the court under this order in the proceedings in question.
These issues must be considered in every case and the importance of each will vary from case to case. I do not consider it necessary to go through each of the elements of the checklist seriatim, instead, having considered this matter, I believe I must find, inter alia, the answers to the following critical questions.
(Doc) Family Division Court Northern Ireland - RE: (HOMEFIRST COMMUNITY HEALTH & SOCIAL SERVICES TRUST) (11.05.2001)Justice Higgins
Article 10 of the Adoption Agency Regulations (Northern Ireland) 1989 states –
10.-(1)Subject to paragraphs (2) and (3), an adoption panel shall consider the case of every child, prospective adopter and proposed placement referred to it by the adoption agency and shall make one or more of the recommendations to the agency, as the case may be, as to –
(a) whether adoption is in the best interests of a child and, if the panel recommends that it is, whether an application under Article 17 or 18 (freeing child for adoption with or without parental agreement) should be made to free the child for adoption."
There is no requirement in the Regulations that the children be in the care of the Trust prior to referral of the children to the Adoption Panel.
These children have now been accommodated since June/July 1999. No attempt has been made to remove them and the mother appears content with their present placements.
Initially she did not co-operate with the Trust but more recently has agreed to, it is said, because the interim care orders are in force.
The children have been in voluntary accommodation for nearly two years. If rehabilitation with their mother is not a realistic option then plans have to be made for their future and it is appropriate that the Trust do so. Care proceedings have now been issued with that principle in mind, and it might be said, not before time.
When care proceedings come before the court they can be heard immediately, if ready to proceed.
More often they are adjourned for a directions hearing and the fixing of a date for trial. It is not essential that an interim care order be made.
Is one necessary in this case on the ground put forward by the Trust.
An interim care order is not a necessary prerequisite before a referral of the children to the Adoption Panel can be made. In those circumstances it would be wrong for a court to make an interim care order on that basis or on the basis that the Trusts' social workers believe interim care orders are required or that the Trust would prefer to have interim care orders in place when the children are referred to the Adoption Panel can be made.
Therefore I decline to make interim care orders on the main submission put forward by the Trust.
The effect of an interim care order is to order that the designated authority receive the child into its care – see Article 52(1).
By Article 53(3) the designated shall have parental responsibility for the child and have the power, where necessary to safeguard or promote the child's welfare, to determine the extent to which the parent may meet his parental responsibility for the child – see also Article 53(4).
Article 6 defines parental responsibility as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
I have considered carefully whether there is some advantage to the children's welfare to be gained, in the particular and unusual circumstances of this case, from having interim care orders in force or any necessity for them. I can find no such advantage or necessity nor has any been indicated to me. I therefore decline to make interim care orders in respect of these children.
The mother and the Guardian Ad Litem have expressed the view that the Trust's plan for permanent arrangements are premature. That issue is for another day.
(Doc)Family Division Court Northern Ireland - RE: (Allocation Of Proceedings (13 March 2002) Justice Gillen
"I came to the conclusion that the grave issues in this case had been identified and are being dealt with. I decided that the Trust was dealing with this case in accordance with the care plan and accidental injury was being investigated and that the care plan should continue as drafted and this case should be dealt with in the Family Proceedings Court before Mr Nixon. Bearing in mind the hearing volume of cases with which the court has to deal I made an ICO for both children until 8 February and sent this case to Craigavon FPC for the attention of Mr Nixon RM."
Transfer from a Family Proceedings Court to a Family Care Centre.
5(1) Subject to paragraph (2) and to Articles 6 and 7 a Family Proceedings Court shall, upon application by a party or of its own motion, transfer to a Family Care Centre proceedings of a kind mentioned in Article 3(1) where it considers that the proceedings are exceptionally grave, important or complex in particular –
(a) because of complicated or conflicting evidence about the child's physical or moral well-being or about other matters relating to the child's welfare;
(b) because of the numbers of parties;
(c) because of a conflict of law with another jurisdiction;
(d) because of some novel or difficult point of law; or
(e) because of some question of general public interest.
(2) The court shall only transfer proceedings in accordance with paragraph (1) where, having had regard to the principles set out in Article 3(2) of the 1995 Order, it considers it in the interests of the child to do so."
Transfer from a Family Care Centre to the High Court
10. Where proceedings have been transferred to a Family Care Centre under Article 5 or 8 the court shall transfer the proceedings to the High Court where, having had regard to the principles set out in Article 3(2) of the 1995 Order, it considers that the proceedings are appropriate for determination in the High Court and that such determination would be in the interests of the child.
Transfer from a Family Care Centre to a Family Proceedings Court or other court of summary jurisdiction.
12-(1) Subject to paragraph (3) a Family Care Centre shall transfer to a Family Proceedings Court before trial, proceedings which were transferred by that court under Article 5 where it considers that the criterion cited by the court as the reason for transfer does not apply.
(2) Subject to paragraph (3) a Family Care Centre shall transfer to a court of summary jurisdiction, before trial, proceedings which were transferred by that court under Article 8, where it considers that the criterion cited by the court as the reason for transfer does not apply.
(3) A Family Care Centre shall only transfer proceedings in accordance with paragraphs (1) or (2) where, having regard to the principles set out in Article 3(2) of the 1995 Order, it considers it in the interests of the child to do so.
Contravention of this Order.
16. Where proceedings are commenced or transferred in contravention of a provision of this order, the contravention shall not have the effect of making the proceedings invalid; and no appeal shall lie against the determination of proceedings on the basis of such contravention alone.
(Doc) Family Division Court Northern Ireland - RE: (DOWN LISBURN HEALTH AND SOCIAL SERVICES TRUST) Justice Weir
 The applicant ("the Trust") applies for a Care Order pursuant to Article 50 of the Children (NI) Order 1995 ("the Order") in respect of C. B is the father of C and S is the mother. K, a man who was living with S when injuries to C were discovered, was given leave to intervene in the proceedings. At the hearing the Trust, the Guardian ad Litem ("GAL"), B, S and K were all separately represented by counsel.
 I have been greatly assisted by the realistic and cooperative approach of all counsel. In the first place it was agreed that the relevant date for the assessment of the first limb of the test namely "that the child concerned is suffering, or is likely to suffer significant harm" was 23rd February 2006 when the date of the initiation of protection measures, namely the Emergency Protection Order obtained by the police.
Counsel also agreed that at that date the child was suffering "significant harm".
Moving to the second limb, whether "the harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give to him"?
In relation to this limb I am satisfied on the balance of probabilities that K caused serious injuries including head injuries to C and, for the reasons earlier discussed, I cannot exclude the possibility that S may also have caused some of the injuries though I regard that as less likely. I am also satisfied that both K and S failed to afford C the protection which it would have been reasonable to afford him.
 Accordingly I am satisfied that the criteria required by Article 50(2)(a) and (b) of the Order have been established.
(Doc) Family Division Court Northern Ireland - RE: (Trust Application)
(6th October, 2000) Justice Higgins
5. Parental responsibility is defined in Article 6.
6(1) In this Order “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
6. E is the subject of an interim care order. When a care order or an interim care order is in force, the authority designated by the order (the Trust) has parental responsibility for the child.
The designated authority or Trust also has the power to determine the extent to which a parent of a child may meet his parental responsibility for that child.
1. This is an application by VB for a parental responsibility order in respect of EF (E) who was born on 18 March 1999. VB and the child’s mother KF are not married. KF is 20 years of age and has a much troubled background. She is presently detained in hospital, not for the first time, under the Mental Health (Northern Ireland) Order 1986.
The mother’s objection is a significant contra factor.
She knows the applicant intimately and, malice apart, her views carry substantial weight.
The applicant wishes to oppose the adoption. Without parental responsibility he can still ask to be joined as a party and, even if not so joined, the court must consider his objection to the freeing for adoption proceedings and he would be entitled to ask the court not to grant an Article 18 order, but to consider granting him a Residence Order.
It is a fact there is no attachment between the applicant and E and that is relevant as are the reasons for that. A degree of commitment is present and it is not an insignificant commitment. However, E is in care and has been for
the Trust plan is for adoption (though that will be tested);
the applicant has two other children with whom he has no contact; he is now in another relationship with a new partner and neither of them has a home; the child’s mother objects and her reasons are his lifestyle and criminal convictions.
When I consider his degree of commitment and his reasons for applying for parental responsibility, together with the various other factors I have mentioned above, I am not persuaded that this is an appropriate case in which to grant the applicant parental responsibility and I refuse the order sought.
(Doc) Family Division Court Northern Ireland - RE: (IN THE MATTER OF E AND M (ARTICLE 53(2) APPLICATION BY TRUST TO REDUCE CONTACT: CARE PLAN: LONG TERM FOSTER CARE)(14/12/06) Master Wells
 This is an application brought by North and West Belfast H&SS Trust (hereinafter called 'the Trust') to vary contact pursuant to Article 53(2) of The Children (NI) Order 1995 (hereinafter called 'the Order'). The C1 application was filed on 2 August 2005.
 E is aged 11 years 11 months and M is aged 10 years and 1 month. They were initially placed in care on 15 January 1998 and were both made the subject of full Care Orders before Belfast Family Proceedings Court on 2 March 1998.
The Trust after assessment having decided against reunification to birth parents, made application on 25 January 1999 to seek orders to free the children for adoption.
These applications were refused by Higgins J on 2 February 2001 – see judgment Ref: HIGF3274.
At the conclusion of this hearing the Judge made a Contact Order (Article 53) allowing the parents to have contact with the children for a period of two hours once per week. Consideration was to be given to the introduction of unsupervised contact, particularly for the father (MS).
 The Trust subsequently made an application to vary the contact arrangements in respect of the father whilst he was in prison, and on 18 June 2001 Higgins J varied the Contact Order, ordering that direct contact between the children and their father be suspended whilst he was in prison and that he should have 'indirect telephone contact' only, once per week, each Friday between 2.30pm and 3.00pm.
 The children have experienced significant placement changes since they were initially placed in care – the Guardian ad litem's report states that E has experienced 8 foster placements along with a number of respite placements, and is presently in a Children's Home awaiting a specialist foster placement.
The Guardian further reports that M has experienced 8 foster placements and a number of respite placements.
His current carers have been assessed as permanent long term foster carers and for him it is hoped that this placement shall sustain throughout his childhood.
E and M initially resided in the same foster placement but in 2002 the shared placement broke down and E was placed separately.
 Each child has been assessed as having special needs. E has been diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD); she also has a Severe Attachment Disorder.
E is under the care of Dr Richard Wilson, Consultant Child and Adolescent Psychiatrist, and she is in receipt of medication for her medical condition.
M has been diagnosed as suffering from Aspergers Syndrome,
but is not in receipt of medication. He attends mainstream primary school and is now in P5.
He has been
under the care of Dr Christine Lavery. MS is concerned that he has not received information from the Trust regarding M's condition
and that the condition may have implications for contact.
MS stated that he was only made aware that his son suffered from Aspergers Syndrome when Sally Wassell, expert witness, was observing contact on 13 July 2006, and she suggested to MS that he should not seek to hug or lift M to offer him comfort or affection.
The Trust's C1 application filed on 2 August 2005 refers to each child's health.
When Mrs Lesley Anne Parks, Senior Practitioner gave her evidence she indicated that in early 2005 – after some lengthy assessments – M was first diagnosed with Aspergers Syndrome,
and that she had advised MS of this during a prison vision in February 2005.
 The Trust is seeking an order to vary the Contact Order made on 2 February 2001 to reduce the frequency of contact. The current duration of contact is 1hr 30 mins per week between the children and their parents together; E also has weekly phone contact with her father.
The parents have been separated for some considerable time. The Trust proposes to allow each parent separate contact with the children due to hostilities which can arise between the estranged parents during contact sessions.
The Trust further proposes to change the venue for contact, and to allow the contact to be activity based, albeit loosely supervised. The Trust's proposal for direct contact is on a 5 weekly cycle.
(Doc) Family Division Court Northern Ireland - RE: (IN THE MATTER OF AN APPEAL FROM THE FAMILY CARE CENTRE)
(29 May 2003) Justice Gillen
This matter is an appeal from His Honour Judge Lockie sitting in the Family Care Centre in the County Court for the Division of Belfast.
The appeal arises out of a long-running case involving applications under Article 8 of the Children (Northern Ireland) Order 1995 by paternal grandparents seeking contact with three children namely E born on 7 August 1995, E1 born on 26 July 1997 and A born on 17 August 1998.
The background to this case is that the mother and father of the children, having married on 24 June 1994, separated in April 1999. Thereafter acrimonious proceedings ensued with various applications for contact by the father and the paternal grandparents.
In the course of those proceedings the mother had made allegations that the grandfather had physically or sexually abused the children and in particular E1.
A lengthy hearing in the course of 2002 ensued to determine the truth of these allegations and in the course of a judgment given by Judge Lockie on 21 March 2002 he rejected the allegations concluding, inter alia, that the mother had been instrumental in keeping the issue in the mind of her children especially in relation to E1.
He found that the mother had failed to convince him on the balance of probabilities that E1 had been sexually abused by the grandfather. Accordingly he considered that immediate indirect contact would take place between the children and the grandparents with the exchange of letters, cards and presents.
The progression towards other indirect and later direct contact was to depend upon the professional judgment of the social workers.
 The judge proceeded to make a series of directions concerning the nature of the contact that was to ensue and in particular, at direction 3, the following appeared in the court order:
"The court grants leave for an expert to be engaged.
The following documents can be disclosed to the expert – Judge Lockie's judgment, all social worker reports and Dr Swan's
A joint letter of instruction is to be sent to the expert detailing what is required of them, documents to be disclosed and liberty to see further documents".
It was agreed by counsel on behalf of all the parties who appeared in front of me that the directions ought to have included the following additional sentence:
"It is agreed that the issues of sexual abuse will not be reopened with the expert".
 The mother now appeals against that direction. The appeal was drafted in the following terms:-
"Under Article 166(1)(b) of the Children (Northern Ireland) Order 1995 against the decision
His Honour Judge Lockie QC on 7 March 2003 at Belfast Family Care Centre when he made an interim order directing that a psychologist prepare a report in order to suggest ways to progress direct contact between the children and the first-named respondents and further that the allegations of sexual abuse should not be looked at as part of this assessment or in any further court proceedings."
Six grounds of appeal were thereafter set out as follows:
"(1) That the learned judge erred in law in that he failed to pay any radical attention to the fresh sexual abuse allegations made by the children against the first-named respondents.
(2) That the learned judge erred in law in that he failed to permit the fresh sexual abuse allegations made by the children to be taken into consideration when determining the issue of contact between the first-named respondents and the children.
(3) That the learned judge erred in law in that he failed to apply the welfare checklists and to give effect to the paramountcy of the interests of the children.
(4) That the learned judge erred in law in that he failed to take into consideration as to whether the direct contact between the children and the first-named respondents is in the best interests of the children in light of these fresh allegations.
(5) That the learned judge erred in law in that he failed to permit Dr Alice Swan or some other appropriate expert to consider the issue of the sexual abuse allegations and to prepare a report on the basis of same.
(6) That the learned judge made a decision that should not have been reasonably made".
Family Division Court Northern Ireland - RE: (E and M (Applications to Free for Adoption)(02.02.2001) Justice Higgins
These are applications to free for adoption without parental agreement the two children of Mrs McA and Mr S who have never married. E was born on 5 December 1994 and M was born on 22 October 1996.
The applicants are North and West Belfast Health and Social Services Trust who apply for the Court to dispense with the agreement of Mrs McA and Mr S to the adoption of their children on the ground that their agreement is unreasonably withheld.
The Adoption (NI) Order 1987 (the Adoption Order) has been amended in several important respects and new Articles or paragraphs substituted by Schedule 9 to the Children (NI) Order 1995 (the Children Order). In this judgment the Adoption Order is referred to in its amended or substituted form.
Article 18 of the Adoption (NI) Order 1987 states:
"18.-(1)Where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child, that his agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2)
the court shall make an order declaring the child free for adoption.
(2) No application shall be made under paragraph (1) unless -
(a) the child is in the care of the adoption agency; and
(b) the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.
(2A) For the purposes of paragraph (2) a child is in the care of an adoption agency if the adoption agency is a Board or HSS Trust and he is in its care.
(3) Paragraphs (3) and (5) to (7) of Article 17 shall apply to an order made by a court under paragraph (1) as they apply to an order made by a court under Article 17(1)."
Article 17(3) of the Adoption (NI) Order states:
"On the making of an order under paragraph (1), parental responsibility for the child is given to the adoption agency, and paragraphs (2) to (4) of Article 12 shall apply as if the order were an adoption order and the agency were the adopters.
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