On 18 December 1996 a Protocol was issued by the Principal Family Court Judge, after consultation with the then Children, Young Persons and Their Families Service, the Ministry of Health, the Police and, as it was then known, the Department for Courts. The aim of the protocol was to assist those who are concerned with the care and protection of children and who may wish to obtain an appropriate order from a Court in any emergency situation which might pose a threat to the life or wellbeing of any child. At that time the Family Court did not have jurisdiction to order that a child be made a ward of the Court for the particular purpose of authorising the performance of any medical procedure or treatment (such as a blood transfusion); that jurisdiction was vested solely in the High Court. The Family Court now has full "wardship" jurisdiction, concurrent with and subject to the jurisdiction of the High Court.
Notwithstanding the change to the jurisdiction of the Family Court, it is still appropriate for a protocol to be in place to facilitate the processing of guardianship applications designed to obtain an appropriate order from the Court in a medical emergency.
Where the Family Court is approached on the basis outlined above, the following protocol should apply.
Grounds for application: Where a child’s life or wellbeing is in serious jeopardy and it is believed on good grounds that the guardian or guardians of the child will not consent to the administration of such reasonable medical or therapeutic treatment as is considered to be required, an application should be made to the Family Court.
Applicant: The authority seeking to administer what is considered the appropriate treatment (usually a hospital) should instruct its own solicitors to make the guardianship application to the Family Court as soon as it appears likely that the assistance of the Court will be required. Alternatively, where the circumstances so require, the authority seeking to administer what is considered the appropriate treatment should contact the nearest office of the Department of Child, Youth and Family (the Department) for the Department to make the application.
Orders sought: The applicant should seek an order placing the child under the guardianship of the Court to enable the Court, if it thinks fit, to authorise such medical and surgical procedures as may be required to safeguard the welfare and wellbeing of the child and, if considered necessary, to appoint a person to be the agent of the Court for that purpose. If the hospital is the applicant, leave to apply will need to be sought (such application being filed at the same time as the one for placement under guardianship of the Court).
If a situation such as is contemplated in paragraph (a) arises during the working week there should be no difficulty in obtaining a hearing before a Judge. If there is no resident Judge available, the Registrar will forward the papers to a Judge as soon as it is filed by way of facsimile and a hearing by way of telephone link-up will be arranged. The Court will ensure that the application is given the appropriate urgency.
If the emergency arises at the weekend or during any holiday period, the hospital, the Department and the Registrar will need to know what course to follow to obtain access to a Judge at that time. The following procedures will apply.
The applicant (either the Department or the hospital) should advise the Court that an application is about to be made. (The Registrar will already have advised the hospital and the Department of the name and telephone number of the member or members of the Court staff to contact outside working hours).
Where the circumstances require the Department to make the application, the hospital should contact the duty social worker at the nearest office of the Department as soon as it appears likely that the assistance of the Court will be required.
Upon receipt of advice that an application is to be made, the Court will alert a Judge that an application is about to be made. (The Registrar will have the after hours telephone numbers of the Judges who preside in his or her Court).
Arrangements will be made by the Court to place the application before a Judge as soon as it is ready. The Registrar is to ensure that the application is referred to a Family Court Judge, and only if one is unavailable is the reference to be to a District Court Judge.
Thereafter, consideration of the application and the procedure to be followed will be in the hands of the Judge.
Although it is anticipated that an application and any affidavit(s) in support will normally be in writing, it is acknowledged that in some circumstances oral applications and evidence will have to be accepted.
Copies of this new Protocol are to be made available to the Medical Association, the Police, the Department of Child, Youth and Family, the Ministry of Health (and, through the Ministry, to the hospitals) and the Ministry of Justice. Each of these agencies will be responsible for ensuring that it is disseminated to the appropriate staff in its agency.
This revised Protocol is issued on 24 March 2011 and comes into operation on 24 March 2011.