England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		15th February 2013

His Honour Judge Jeremy Richardson QC:

1. In these judicial review proceedings, I am concerned with a 16-year-old boy, to whom I shall hereafter refer as A. These proceedings have been conducted in public, but it is vital A is granted anonymity. The names of his mother and other family members must also remain camouflaged. There can be no objection to the disclosure that the case concerns decisions made by Her Honour Judge Carr QC at Sheffield County Court or that the Social Services Department of Doncaster Metropolitan Borough Council were involved in the family litigation, namely the care proceedings.
2. There is before me today a renewed application by CB ("the mother") for permission to apply for judicial review of a decision by Her Honour Judge Carr QC at Sheffield County Court on 14 March 2012 when she declined to give the mother leave to apply to discharge the care order and for contact to A. Permission was refused by Wilkie J on 29 October 2012, who observed in his written decision:

"4. Having read the material filed, it is clear that the Court acted within its jurisdiction, and there was no arguable procedural irregularity such as to constitute a denial of the Claimant's right to a fair hearing. On the contrary, the proceedings before HHJ Carr appear to have been conducted with conspicuous fairness.

5. In all the circumstances there is no arguable case that the foundation has been laid for a judicial review of the decision of Sheffield County Court and this application for permission to seek Judicial Review must be refused."

3. The mother has previously applied for judicial review in relation to these care proceedings, and that, too, was unsuccessful. The mother was refused permission to apply for judicial review in that case on 10 November 2010 by Langstaff J. It is noteworthy that both Langstaff J and Wilkie J have determined both judicial review applications were without merit. Notwithstanding that twofold clear judicial observation, the mother renews her application before me today.
4. The ordinary way to challenge a decision made by a judge in the county court in care proceedings is to seek permission to appeal from either the judge in that case or the Court of Appeal itself (usually consisting, but not always, of a single Lord Justice of Appeal). If permission is granted, the appeal is heard by the Court of Appeal, consisting of at least two judges. In short, the appellate route is via the Court of Appeal. Permission to appeal may only be granted if there are realistic prospects of success or there is some other good reason for the appeal to be heard.
5. The mother is a self-represented litigant – a litigant in person. She has represented herself throughout these proceedings. I am told that she has approached a number of firms of solicitors. All have declined, as is their right, to represent her. Ordinarily, she would be able to receive public funding in respect of this care litigation and be represented. She has addressed this court with considerable courtesy and passion. She showed me a card at the outset of the hearing with a figure of justice upon it. She has submitted a long statement setting out her case with emotion; but sadly I fear it discloses no proper basis for a judicial review claim. The statement might, (I emphasise the word "might") be relevant to the family case, but it has no relevance to these proceedings. The mother is plainly emotionally affected and deeply troubled by all that has happened to her over the recent past in relation to her son, A.
6. The circumstances of the case in summary form appear to be these: (1) Prior to the care proceedings, A lived with his mother and, for a significant period of time, with his maternal grandmother as well. The father was on the scene for a while, but the mother and father separated; (2) Doncaster Metropolitan Borough Council ("Doncaster") sought and obtained an emergency protection order in April 2009. A was placed with foster carers and removed from the care of his mother; (3) An interim care order followed shortly afterwards; (4) Fully contested care proceedings took place before a recorder in Sheffield County Court in January 2010; (5) A final care order under section 33(1) of the Children Act 1989 was made on 22 January 2010. At that time, A was aged 13; (6) The mother sought permission to appeal in respect of that decision and was refused; (7) The mother also sought to judicially review the decision to make the care order. That was refused, as I have already indicated, by Langstaff J in November 2010; (8) Doncaster made various applications thereafter. In June 2011 they sought an application that they be given permission to restrict or extinguish contact and, further, that no application should be made to the court by the mother in respect of A without the permission of the court. The mother accepts that she did not oppose those applications in any meaningful way. She has given the various reasons relating to her emotional state as to why she did not oppose those applications; (9) In July 2011 an order was made pursuant to section 91(14) of the 1989 Act requiring the mother to seek the permission of the court before any further application should be made in connection with the care proceedings; (10) On 14 March 2012 Judge Carr QC determined such an application and refused the mother leave to make any application in respect of the care proceedings; and, (11) The current position, I am told by a social worker in the employment of Doncaster, is this. A appears to be very settled. He was lacking confidence when he arrived with foster carers, but now is much more confident. He attends college and is undertaking a catering course. Most significant of all, according to the social worker, who has addressed me as a result of my desire to have a little more background information, is that A has made it clear that he does not wish to have any contact with his mother.
7. The matters at sub paragraph (11) (supra) are factual matters which I have not taken into account in determining this application.
8. I sit today in the Administrative Court, dealing with an application for judicial review and whether permission should be granted to take this case further. I am not sitting as a judge in a family court. It is very important for the mother, indeed all parties, to appreciate that I sit in the Administrative Court and not in a family court.
9. It is right to observe the mother has never accepted the basis of the case against her and why the family courts have made the protective orders they have in respect of A. The mother asserts the actions of the local authority, the courts, perhaps even this court, has been excessive, unjustified and unlawful. She blames for the most part the local authority, namely Doncaster. She does not have a good word for them.
10. The order made in March 2012 under section 91(14) was never the subject of any appeal or an application for permission to appeal, either before Judge Carr QC or the Court of Appeal. There was simply no appellate process. The application for leave to make a contact application and to discharge the care order was refused by Judge Carr QC on the following basis: (1) The mother had no arguable case for making an application of the kind she wished; (2) The mother simply rehearsed a raft of matters in respect of which she sought to oppose the making of the care order in 2010; and (3) A was and is doing well in his foster placement, enjoying a period of stability. There was no application for permission to appeal made to the judge, nor was there any application for permission to appeal made to the Court of Appeal.
11. I asked the mother: why not? She gave me, effectively, four reasons: (1) She was in receipt of no professional legal advice or assistance. As I have indicated heretofore, she said she had been to various solicitors, but none were prepared to help her; (2) She asserted she was very nervous when she appeared before the judge. That may well be so. It is fair to point out that, at the hearing today, although I do not doubt for one moment she was very nervous, she nevertheless managed to present a case with some force, indeed verve; (3) She advanced before me the learned judge in the county court told her that she was statute-barred from bringing any appeal. That interpretation of what Judge Carr said is not borne out by the transcript of the proceedings. I have seen the transcript of the learned judge. What the judge did say was that the period of time in respect of bringing an appeal against the original order had now long since expired. She did not say that the appeal period in respect of her decision on that day had expired. In the end it was accepted during the course of argument before me the mother was labouring under a misapprehension as to what the judge said. I repeat: there was no appellate process. That would have been the correct way to challenge, or more accurately seek to challenge, the learned judge's decision. That was not done.
12. It will be remembered that I may only grant permission to apply for judicial review if there is a properly arguable case that warrants full consideration by this court. Equally, this court will not entertain applications when there is a suitable alternative remedy. If a claimant in this court has elected or decided to take a course that does not involve the obvious or alternative remedy, then this court will not engage the case. It is an important point of principle in terms of the operation of this court. Put shortly, in the context of this case, the position is this. The correct route to seek to challenge Judge Carr's decision was to apply for permission to appeal to the judge or to the Court of Appeal. That was the correct way to proceed. That was not done.
13. I turn to the mother's case, advanced with force and verve before me today. The mother said she was left with no alternative but to bring this judicial review application. As she now accepts, she misunderstood the position before Judge Carr in relation to a potential appeal. She simply says she misunderstood what the position was. I fear there is going to be an increasing problem for all courts, and in particular family courts, with the increase of litigants in person appearing before those courts. The consequences of that will be very serious for the administration of justice and in particular the speed with which courts can process cases.
14. It has to be said that cases involving self-represented litigants take longer than when professional lawyers are involved. The hearing today has been an example of that. Frequently self-represented litigants, and I say this in no critical way, make unfocussed submissions. They are not lawyers, after all. Judges will have to intervene the more. Ultimately the judge is exactly that, the judge, and should not be expected to go on a voyage of discovery of his or her own or act as an advisor to a litigant about what to do, or how to handle their case, or what options are open to them at the conclusion of the case. Sometimes individuals ask, "May I appeal?", and judges are always able to give assistance in that regard as to what course of action is open to them, usually either refusing permission to appeal there and then or granting it, as the case may be, but at least pointing out the route of appeal. It is a fine balance for any judge hearing an application between advising a route of appeal and raising false prospects, and saying nothing. It is a matter of individual judgment in a particular case as to what course of action a judge chooses to take. It has to be said that if every judge is required, and I do not believe there is such a requirement, to mention the potential of an appeal to every self-represented litigant, I fear there will be a real and worrying increase in work before appellate courts. Indeed, there is a real risk, in that circumstance, that the appeal court would become clogged with unmeritorious cases more than now.
15. The mother has raised an Article 6 and an Article 8 point under the Convention. In relation to Article 6, she asserts she had no fair trial. In relation to Article 8, she says that the local authority and the court have effectively ridden roughshod over her parental rights. I have viewed her case with some little care and I do not see any realistic prospect of making a suggestion that there was an unfair trial process before Judge Carr. I agree with the observation of Wilkie J. Having viewed the transcript, as I have, it was -- let there be no doubt -- a fair trial process. I am aware that all self-represented litigants feel vulnerable, and judges take that into account when they sit in judgment in cases of that kind. The transcript of the judgment reveals fairness and understanding of the mother's position.
16. In relation to Article 8, a comprehensively unfocussed submission was made to me. I have, however, conscientiously considered the point. It must always be remembered that, if there is a conflict between the Article 8 rights enjoyed by a child and those enjoyed by a mother, grandmother or wider family, the Article 8 rights of the child prevail. Human rights jurisprudence makes that perfectly clear. I do not see any properly arguable Article 8 point in this case whatsoever.
17. I have considered the case of R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475. The mother was unaware of this decision. I called it to her attention and even called individual paragraphs to her attention. I do not intend to indulge in an interesting but irrelevant intellectual excursion down the byways of that case. I simply refer to and adopt paragraphs 46, 47 and 48 of the judgment of Lord Phillips, the then Master of the Rolls.

46. Mr Sales argued that permission to claim judicial review of a decision of a County Court should not be granted where the possibility of an appeal to a higher court pursuant to provisions of statute remains open. He so submitted both as a general proposition and in reliance upon the 1999 Act, and the legislative policy behind it. He submitted that there is an abundance of authority for the proposition that permission to claim judicial review should not be granted when a suitable alternative remedy is available.

47. There is indeed an abundance of authority, which supports Mr Sales' submission. This can be demonstrated by reference to that which he cited to us:

Harley Development Inc v Comr of Inland Revenue [1996] 1 WLR 727, 736C per Lord Jauncey; R v Inland Revenue Comrs, ex p. Preston [1985] AC 835, 852D-F per Lord Scarman, and 862D and F per Lord Templeman; R v Secretary of State for the Home Department, ex p. Swati [1986] 1 WLR 477; R v Birmingham CC, ex p. Ferrero Ltd [1993] 1 All ER 530, 537c per Taylor LJ; Allen v W. Yorkshire Probation Service [2001] EWHC Admin 2.

What these authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.

48. We believe that these general principles apply with particular force in the context of the applications before us. Under the 1999 Act, and the rules pursuant to it, a coherent statutory scheme has been set up governing appeals at all levels short of the House of Lords. One object of the scheme is to ensure that, where there is an arguable ground for challenging a decision of the lower court, an appeal will lie, but to prevent court resources being wasted by the pursuit of appeals which have no prospect of success. The other object of the scheme is to ensure that the level of Judge dealing with the application for permission to appeal, and the appeal if permission is given, is appropriate to the dispute. This is a sensible scheme which accords with the object of access to justice and the Woolf reforms. It has the merit of proportionality. To admit an applicant to by-pass the scheme by pursuing a claim for judicial review before a judge of the Administrative Court is to defeat the object of the exercise. We believe that this should not be permitted unless there are exceptional circumstances – and we find it hard to envisage what these could be. Hooper J. was right to dismiss Mr Sivasubramaniam's application in relation to District Judge Dimmick's award on the ground that he had an alternative remedy. He should have dismissed Mr Sivasubramaniam's application in relation to the Wandsworth County Court for the same reason rather than entering into consideration of the merits."

I have called, as I have indicated, the attention of the mother to those binding passages of the judgment of Lord Phillips MR, giving the judgment of the Court of Appeal (Lord Phillips MR, Mance LJ (as he then was) and Latham LJ). I apply those principles to this case.

18. In the upshot, therefore, my conclusions are these. They are simple and straightforward. (1) It is very sad for the mother and the grandmother (who I add parenthetically addressed me for a short while as well, in equally passionate terms as her daughter) at a personal level for them to have A taken into care, and for other consequential orders to have been made within the family proceedings. They are plainly emotionally overwrought by what has happened. It must always be remembered that the paramount concern of the family court is the welfare of A in this case, not the welfare of the mother or the grandmother. (2) Within those proceedings, section 1, as I say, of the Children Act 1989 was the lodestar: namely, the paramount concern of the court was the welfare of A. (3) There is a more than adequate appellate process open to the mother to have challenged decisions and orders made by a judge sitting in the county court. (4) The mother has not availed herself of that. She asserts she misunderstood the position. That is unfortunate. I am afraid it does not assist her in this court. There was, and is, a perfectly adequate appellate process from a decision of a judge in the county court. The route of appeal, providing permission is given, is to the Court of Appeal and not to seek judicial review of the county court decision. (5) Judicial review in these circumstances is not open to her, as there is an obvious alternative remedy. (6) As far as I can see, there could in fact be no challenge to the decision of Judge Carr QC in any event. For my part, I can see no error of law or other irregularity that would give rise to a realistic prospect of success of any appeal. That, however, is irrelevant for my decision today. (7) The mother resolutely refuses to accept the situation. She has now been to this court twice. She must not come again unless there is a valid claim for judicial review.
19. I have considered whether there are any grounds for making any form of civil restraint order. Had I thought there were or such as caused me to act upon those grounds, I would have adjourned the proceedings from this point on to hear further submissions. I have, in the result, decided not to make any form of civil restraint order, but I will make it clear on the face of the order resulting from the decision today that consideration has been given to it by me, and I shall direct that any further judicial review application that should be made by the mother will be referred to me forthwith and at that stage it may be the subject of a strike-out or civil restraint proceedings. This court is not prepared to be forced into a state of sclerotic paralysis by dealing with cases of this kind over and over again. I will take that course if that future claim, and I hope there will be no future judicial review claim, is as devoid of merit as this one. Judge Carr, it seems to me, needs to be sent a copy of this judgment, as she must be kept advised of what is happening in this court (more accurately, what has happened and may happen in the future) in case the mother makes yet further applications in the family court.
20. Finally, it is clear to me, and indeed it is very sad, that the mother just cannot accept decisions that have been made in this case and has become emotionally disorientated. I regret to say that it appears to me she has lost all sense of proportion and focus. I repeat: it is very sad. For these reasons, this case is judged by me to be comprehensively devoid of merit. There is not one grain of an arguable point. Consequently I refuse this renewed application for permission and certify it to be totally without merit.
21. This application is refused.

JUDGE JEREMY RICHARDSON QC: I am sorry, Ms B, there is no point that is properly arguable. I think you have become emotionally unfocussed as a result of all the things that have happened. I understand that. Nobody is criticising you for it at all, certainly not me in this court, but your son is now seemingly doing well, and the challenge you made to the decision of Judge Carr, if there was a challenge, and I do not believe there was one anyway, but if there had have been, your route was to the Court of Appeal and not here. Consequently these proceedings are at an end. The second point is this, and I am addressing you in simple terms so that you understand the position. You have now been to this court twice. You cannot have a third one unless it is a properly arguable point and, if you do make another application, the papers will be referred to me directly, and there is a real risk that I could make a civil restraint order. I think there is the power there already given that there are two applications that have been certified as devoid of merit. This is now a third. The door is wide open for a civil restraint order. I do not wish to make one. I do not wish to add to your troubles, but believe me if there is another application made to this court which is so devoid of merit as this one and the previous one, then I am afraid a judge, almost certainly me, will make a restraint order and you will not be permitted to bring any proceedings at all without permission of a judge. Now nobody wants to get to that scenario. One always is reluctant to make those sorts of orders unless one is forced to. Please do not indulge in conduct that forces the court to take that course of action.

My strong advice to you is this: pause and reflect upon what has happened and perhaps try to get some advice from someone about what to do, if anything. By the sound of it, your son is doing well. You should rejoice in that, as I believe you do. Unfortunately for you, his life is not with you. I am not here to investigate that, but it has been investigated by a court of competent jurisdiction. There has been no appeal, and I am afraid the various orders made by the judges in this case, including Judge Carr, stand. There is nothing I can do to help. Now do you understand what is happening, first of all?

MS B: Yes, my Lord. May I say a few words?

JUDGE JEREMY RICHARDSON QC: Only a few, because I have another case to deal with.

MS B: Yes, I understand my Lord, yes. Firstly, I would just like to say at the outset I did say that all I was seeking was justice, I was not portioning any blame to the courts, I do not proportion any blame to the courts whatsoever. I think my Lord knows where I proportion the blame, squarely on the Doncaster Social Services. And I was wondering, my Lord, if I could humbly, actually very humbly and respectfully, these proceedings are somewhat expensive for me. Obtaining transcripts are expensive for me. I am on very limited income, and I ask the court respectfully, and I ask you, my Lord, if you could possible make available to me a --

JUDGE JEREMY RICHARDSON QC: The transcript, yes.

MS B: The transcript of your judgment at public expense.

JUDGE JEREMY RICHARDSON QC: Well, do not worry about that. There is going to be a transcript of it because Judge Carr needs to have it, and if she needs it, so do you. So there will be a transcript at public expense.

MS B: Thank you, my Lord.

JUDGE JEREMY RICHARDSON QC: And you will be sent it, but more importantly it is to go to Judge Carr, and I daresay Doncaster will want it as well.

MS B: Yes, my Lord.

JUDGE JEREMY RICHARDSON QC: But it will be publicly available.

MS B: I am able to go back to the family Sheffield court.

JUDGE JEREMY RICHARDSON QC: Ms B, you must take whatever course of action you think is right.

MS B: Yes.

JUDGE JEREMY RICHARDSON QC: I am not here to advise you.

MS B: No, I understand that you are not able to do that, my Lord.

JUDGE JEREMY RICHARDSON QC: And I do not encourage you to do anything at all. I think you need to reflect with great care upon the whole situation. What you choose to do hereafter is a matter for you. Judge Carr will be aware of this judgment, and if you persist in unmeritorious applications, you are only going to get yourself more and more into difficulty. So whatever course you choose to take must be a matter for you. The only matter I urge is for you to exercise caution, and try to re-focus on the matters that are of real importance, all right?

MS B: Yes, my Lord. My son is obviously of paramount importance to me, and first and foremost I am a mother, and I am afraid I cannot alter that.

JUDGE JEREMY RICHARDSON QC: Well, there we are. Thank you very much indeed. This application is refused.

MS B: Thank you.

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