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(Northern Ireland Family Division; Stephens J; 12 November 2009)
The child applied for a non-molestation order and an occupation order, alleging violence by the mother in the father's absence. Although the child had special educational needs, an e-mail from the child's solicitors asserted that a solicitor had met the child and deemed him competent. After the father witnessed the mother's threatening response when she opened the child's application, the father and child left the matrimonial home and thereafter contact between the mother and child was supervised.
Careful consideration must be given prior to a child commencing proceedings in the High Court against a parent as to whether it was more appropriate for the proceedings to be commenced not by the child but by the other parent in a family proceedings court. Absent a statement as to the solicitor's assessment of the child's understanding, or other relevant, information the court could not, except in the most exceptional circumstances, exercise discretion to grant leave to commence proceedings. The father could have commenced proceedings in his own name, seeking a non-molestation application to protect the child; an associated person, such as the father, could commence proceedings for a non-molestation order in order to protect a relevant child, even though the associated person needed no protection. Conditions attached to a residence order should not be used to oust a parent from his or her home, nor should such conditions be used to provide protection from molestation. The child was not entitled to apply for an occupation order, not being an associated person within the legislation; however, the father was entitled to do so, and again such an order could be made for the benefit of the child, as a related child.
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