England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Monday 10th December, 2001

1. LORD JUSTICE LAWS: This is an application for permission to appeal against an order made by Scott Baker J in the Administrative Court on 10th September 2001 when he refused permission to bring judicial review proceedings and refused permission to appeal against that order.
2. The case has a long and unhappy background. The applicant has two children: S born 6th September 1983 now aged 18, and R, a boy, born on 23rd December 1986 now aged 14. They were the subject of litigation in the Family Division following the applicant's divorce. That led to hearings before Hale J (as she then was) in the Family Division. On 14th June 1999 Hale J gave a comprehensive judgment and made various orders concerning the children. Those orders were upheld in the Court of Appeal on 3rd December 1999.
3. I observe that the applicant has admitted that he has what has been called an obsessive temperament. Both Hale and Munby JJ (in later judicial review proceedings to which I will refer in a moment) make the comment that that has been reflected in his conduct of the litigation in this case and his perception of what has been done or not done by the professionals involved, both legal and medical.
4. Critical to the case is the fact that there has been a Child Protection Conference ("CPC") relating to S and R. That was held by the London Borough of Harrow on 14th January 1999. The decision reached was that the authority would place S's name on Harrow's Child Protection Register under the category of "emotional abuse" because of the applicant's actions. The CPC acknowledged that investigations regarding the allegations of sexual abuse which had been made had been completed and they concurred with those conclusions.
5. I interpolate that there has not been any sexual abuse and the allegations in question had not been directed to the applicant.
6. The CPC made a number of recommendations:

(1) they advised S to accept additional emotional support to help her deal with all that she had experienced;

(2) social services were to give urgent reconsideration to steps to be taken to protect S by legal measures from further emotional abuse, including protection from the applicant at her future school;

(3) support should be given to the applicant's ex-wife in her endeavours to get S back into mainstream education.

7. The applicant has bitterly resented and opposed what was done at the CPC ever since 1999. He sought to challenge the CPC decision by way of judicial review. He issued an application on 6th April 1999 seeking an order that the Child Protection Conference be declared invalid. A very large dossier of documents was submitted to the court and at length Munby J (who heard the case) identified two main grounds of attack (as he put it): namely a breach of Articles 6 and 14 of the European Convention on Human Rights; and secondly an accusation that the London Borough of Harrow had been guilty of fraud.
8. On 25th May 2000 in a judgment (running to some 96 paragraphs) which I have looked at again for the purposes of today's hearing and given after argument between the parties, Munby J refused the applicant permission to bring judicial review proceedings. He did not detect any illegality, procedural irregularity, unfairness or irrationality in the decision of the Child Protection Conference. Moreover the judge felt that the claim for judicial review could not in any event succeed because the applicant had an alternative remedy: namely a complaints procedure which involves an independent review of the activities of the Child Protection Conference. The review body was the Area Child Protection Committee ("ACPC").
9. In the result then Munby J refused the applicant permission to appeal against his decision. The applicant sought this court's permission and it was refused by myself on, I think, 16th January 2001.
10. So that would appear to have been the end of the road so far as judicial review and the CPC were concerned. What happened next was that the applicant sought a review of the CPC by the ACPC.
11. DR HALEY: Excuse me, my Lord, I sought review of the ACPC, not the CPC.
12. LORD JUSTICE LAWS: All right. I am coming to that. Thank you very much.
13. The application in question is dated 2nd October 2000 and appears at page 81A onwards of the bundle which has been placed before me today. The application document - you really must not talk while I am giving judgment. It is discourteous and distracting.
14. I will start that sentence again.
15. DR HALEY: Excuse me, my Lord, I believe that is a slight error of dating there.
16. LORD JUSTICE LAWS: Dr Haley, I am now giving my judgment. I will do my best to get the dates right, but I will not be interrupted.
17. On 2nd October 2000 (the date is taken from the end of the document, page 115 of the bundle before me, where it is signed by Dr Haley) he set out his grounds for complaint "Re the Child Protection Conference", as it was put. This was a document submitted to the ACPC. It is an extremely detailed document setting out over some 35 pages or so exhaustive criticisms of what had passed at the CPC.
18. The ACPC considered it and responded by letter dated 8th February 2001, in which the solicitors to the ACPC said this:

"The ACPC procedure provides for consideration of a complaint based on the failure to follow the guidelines for undertaking a child protection investigation or for holding a child protection case conference or review. Complaints against the merits of a decision of a child protection conference are outside the remit of the complaints procedure.

The ACPC has given careful consideration to the complaints you set out in the document dated 02 October 2000. There is no evidence to suggest that there has been any non-compliance with ACPC guidelines in the conduct of the child protection conference or of the investigation of matters relating to your children."

19. The letter concludes by making reference to the judgments of Hale and Munby JJ.
20. So it was that the ACPC decided not to establish a review panel to investigate the applicant's complaint.
21. The applicant then sought to challenge this decision by way of judicial review and filed a claim form on 11th May 2001. Permission was initially refused on paper by Jackson J on 17th July 2001. The case then came before Scott Baker J in court on a renewed application. He dealt with the matter (as I have said) on 10th September 2001. First of all he observed that the application for judicial review had neither been made promptly nor within three months of the decision sought to be impugned. There was no material lodged by the applicant explaining satisfactorily why the application was made late. The learned judge took the view that there were grounds for dismissing the application as being out of time, but nevertheless went on to consider the merits. He had before him, as well of course as the applicant's application, a detailed acknowledgement of service put in by the respondents and dated 14th June 2001.
22. In his judgment Scott Baker J said this:

"In my judgment, the ACPC was perfectly entitled to conclude, having considered the very detailed complaints document, that the complaint did not, in effect, get to first base, and that there was no material that warranted any further investigation.

16. There is one other matter to which I should refer, and that is Dr H's complaint that he has not been permitted to inspect the Child Protection Register. In the acknowledgement of service the point is made that entries on the Child Protection Register are confidential to the subject and accessible only by professionals for child protection purposes. The authority is not permitted under Data Protection Act principles to disclose an entry to any other person. It is true that there is one reported decision in which, I think, access has been permitted to the Child Protection Register. What should be made clear is that it is the child's name that is on the register. A question arose in Dr H's mind that he might be recorded on the register as a child abuser. This matter was raised before Munby, who said:

`In fairness to Dr H, I should point out as clearly and as explicitly as I can, and Miss Shenton on the instructions of London Borough of Harrow has confirmed expressly that this is the case, that there has never been any allegation, let alone any finding, of child sexual abuse against Dr H. Dr H has never been accused of paedophilia. The allegation has only ever been one of emotional abuse. That, it seems to me, as I have already indicated, is what the record of the Child Protection Conference makes clear. Be that as it may, the London Borough of Harrow has, as I have said, expressly confirmed that that is the case.'

17. Dr H is still concerned that expressly or by implication he is referred to on the register as an emotional abuser. He wishes to have access to the register. In my judgment, there are no grounds for saying that he ought to be entitled to do so. This is a case where his relationship with his children has been explored at great length before Hale J, and subsequently explored on appeal in the Court of Appeal. It is not appropriate for Dr H to seek now to relitigate matters which are already resolved.

18. I have mentioned briefly that this case has a long history in respect of other applications. It does seem to me that the time is fast approaching where consideration ought to be given to the question of whether an application should be made to the court to declare that Dr H is a vexatious litigant. In my judgment, the present application has no merit, no remote prospect of success, and this renewed application must therefore be refused."

23. It appeared to me in the course of the applicant's submissions this morning that he may have been under the impression that this judgment somehow declared him to be a vexatious litigant, and I was at pains to indicate to him that that was not so. Whether he is ever so declared would depend upon a decision by the Attorney-General to make an application under section 42 of the Supreme Court Act 1981 and the resolution of that application by the Divisional Court in due course. No such steps so far as I am aware have at present been taken. So this case is not about whether or not the applicant should be treated as a vexatious litigant.
24. For the purpose of seeking permission to appeal in this court, the applicant has attached a skeleton argument to his grounds of appeal. I have of course read that carefully. It purports to complain of what the applicant calls two "new irregularities", namely (1) the policy of blanket ban of access to the Child Protection Register" and (2) "the avowed decision by the ACPC not to follow their own procedures."
25. The applicant says that these irregularities (as he puts it) constitute breaches of his rights under Articles 6 and 10 of the European Convention on Human Rights. I should emphasise that in his oral submissions to me this morning he has placed considerable weight on the decision of their Lordships' House earlier this year in the case of Daly and also upon jurisprudence of the European Court of Human Rights in Strasbourg.
26. I am afraid there is nothing in the applicant's complaints. The statutory restrictions to access to the Child Protection Register are plainly objectively justified. It seems to me that Scott Baker J was entirely right in saying that there are no grounds for holding that the applicant ought to be entitled to have access to the register.
27. As for the ACPC, I have already read the substance of their letter of 8th February 2001. Taking that together with the acknowledgement of service which was before the judge below, it seems to me there is no basis for impugning the judge's conclusions.
28. I should say that I have carefully considered the applicant's references to the House of Lords' decision in Daly. But neither that case nor the jurisprudence of the Strasbourg court can assist him. Nor is he assisted by the case of M, decided on 5th April 2001, to which he referred this morning. That case is concerned with a child's rights when a secure accommodation order is sought. Nor likewise is he helped by Beedell The Times 5th April 2001 (to which he has also made reference today). I read only the first sentence in the short report:

"It was not appropriate for the Court of Appeal to set aside the grant of permission to appeal where, although the appeal was absolutely hopeless and bound to fail, the area of law in question was the subject of considerable controversy."

29. That case was concerned with the approach to be taken when application is made to set a permission already granted aside. It seems to me it raises no considerations that ought to affect the result here.
30. I am afraid that I agree with Scott Baker J that this is in truth an attempt to relitigate matters long ago decided. Indeed the applicant's references today to the minutes of the CPC itself demonstrate as much. I make it clear that in my judgment he has no better case in relation to the CPC given the heightened scope of judicial review described in Daly than under the earlier conventional approach.
31. It is a great shame that this application was ever made. I have not the slightly doubt but that it is my duty to dismiss it.
32. Thank you very much.
33. DR HALEY: Excuse me, my Lord, regarding the matter of the section 39 order that was made when I asked - I suggested that should be struck out given it has absolutely no validity whatsoever, given that my daughter was 18 at the time it was made. I request again that it be struck out. It is void. It is meaningless.
34. LORD JUSTICE LAWS: I do not think you have any proper interest to make such an application, do you, Dr Haley? Do you want the names of your children to be publicised in relation to this case?
35. DR HALEY: Excuse me, my Lord, that is actually not the point, in that the order should not have been made in the first place. Simply under law that has no thing. I mean, what my daughter actually chooses to do with her life, if she wants to put this in the tabloids this has got to be her choice. She is 18.
36. LORD JUSTICE LAWS: Thank you very much.
37. DR HALEY: If I could perhaps just ask a couple of other little points, my Lord. If I have understood this - I am sorry this is a slightly traumatic thing so I may have missed this - but you actually said that the ACPC were right to do as they did, but they actually had to establish a review panel which----
38. LORD JUSTICE LAWS: Dr Haley, I will direct that you have a transcript of my judgment at the public expense.
39. DR HALEY: Thank you, my Lord.
40. LORD JUSTICE LAWS: The judgment is given and stands. I will make no order in relation to the section 39 order earlier made.
41. DR HALEY: My Lord----
42. LORD JUSTICE LAWS: I think you are abusing your right to be here, but what is it you want to say?
43. DR HALEY: I am sorry, just two words. I would like to appeal this judgment, if I can. Can I appeal? Because the other one that we cited, a hopeless case to appeal, they appealed to the House of Lords.
44. LORD JUSTICE LAWS: There is no jurisdiction in the House of Lords to entertain an appeal against a refusal of permission. But you should not take that from me. Go and see the Citizens Advice Bureau in this building. This hearing is at an end.
ORDER: Application for permission to appeal refused; applicant to be provided with a copy of the judgment at public expense. (Order not part of approved judgment) _________________