Application to vary care order adjourned to different court jurisdiction – 2018vol1#24

An application by the Child and Family Agency to vary a five-year care order for a child of primary school age was adjourned to be heard in a different District Court area because the judge considered he did not have jurisdiction to hear it in the District Court area in which it was listed. The judge was a “moveable” judge, who could hear cases in any area he was required to sit, and he would hear it in the other area, he said.

The CFA solicitor told the court that the five-year care order had been made in the area where it was now listed. Both parents lived in that area at that time. The mother left the jurisdiction for a time, but had since returned, though she was not in court and was not represented. The father was also not present or represented.

The case was now up for review, and the CFA wanted a full care order until the child was 18. The child, who was in foster care, lived in another part of the country. “The District Court rules state the case may be heard where the respondent resides. In child care matters jurisdiction may be where the child resides. I think the court has full jurisdiction,” the CFA solicitor said, adding he would be happy if the order was made now.

“Purely on a technical issue, I would be worried it could be challenged,” the judge said.

The CFA solicitor said there was no problem if the case was transferred to the other area, but the court there would have to accept jurisdiction. The mother had not engaged with the CFA since the initial application.

“There are two views among my colleagues,” the judge said. “What concerns me about it is that if I make a final order it could be challenged on a technical point in the High Court. I’m not saying it would be successfully challenged, but the possibility of challenge creates uncertainty. If the parents were here it would be harder for them to challenge the order.”

He returned the case to the other district after the summer to fix a date, retaining seisun of the case.

He added that his understanding of the Child Care Act was that if he was being asked to make an order until the child was 18 it might be preferable to have a re-hearing of the case, rather than varying the five-year order.