England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice
		18 October 2018

MR JUSTICE HOLMAN:

1. The claimant in several claims for judicial review is PD, who appears in person before me today. I will shortly, although briefly, describe the history and chronology. In summary, almost all that PD complains about arises originally from the breakdown of his marriage and the fact that he has not now been able to see his child face to face physically and in person since 2016.
2. Further, as a result of a decision in November 2017, almost a year ago now, he has not even been able to see his child by indirect means, such as via Skype. Indeed, he does not currently even know where his child is living, although he knows perfectly well that his child is living with the mother.
3. Short of a child dying, it is hard to imagine a more painful situation for any parent than to be denied any contact at all with their child, nor even to know where their child is. Frankly, the situation that PD is now in must be unbearable for him and one which causes him the utmost grief and despair.
4. I wish, therefore, to preface this ex tempore judgment by stressing that I approach this case, and all that PD has had to say today, from a position of the utmost sympathy for him in the position in which he now finds himself, whether or not he shares a degree of responsibility for that position.
5. The essential chronology is that the father is now aged 42 and the mother 32. They married in 2007, in Lincoln. Initially, they lived together in Lincoln and then at other addresses in different areas until most recently they lived together in rented accommodation in Walton-on-the-Hill near Kingston in Surrey.
6. From their marriage, the parents have one child, namely JD, who was born in October 2015 and is now just 3. Neither of them have, or have had, any other children.
7. The marriage came to an abrupt end on 7 September 2016. According to PD, he and his wife and their child were all living together until that day at the rented house in Walton-on-the-Hill. On that day she left in the morning with their son and never returned. PD regards that act by her as totally inexplicable in the context of what he believed to be a satisfactory, or even happy, marriage and relationship. The mother, no doubt, will have her own and different side of the story. It later transpired that on that date the mother moved to live in a refuge. The father does not know where that refuge was, and he says that he has no idea where she or his son have lived at any time between then and now.
8. On that date, the son was almost exactly 11 months old. The father promptly commenced proceedings in the local Family Court sitting in Guildford, which were transferred to the Family Court sitting in Milton Keynes, where the family proceedings have been heard ever since. There was a hearing in the Family Court at Milton Keynes on 24 November 2016, when HHJ Venables refused to make any order for direct face to face contact between the father and his child.
9. One of the complaints and submissions made by the father, PD, today is that the decision of HHJ Venables was highly prejudicial to him and that it has had what he calls a "rollover effect" on all subsequent legal proceedings.
10. The matter came next before District Judge Dodds, again in the Family Court in Milton Keynes, on 14 December 2016, when that judge did make an order for indirect contact by Skype for one hour once a week, to be supervised by the mother's solicitor as an intermediary. This afternoon, the father showed me a short video clip of one of those sessions of contact in which the father is singing cheerfully to his son and the son shows the appearance of being relaxed and happy.
11. The father was also permitted at that stage to receive photographs and video clips of his son, and to make three gifts available per month for his son. He was not, however, permitted to have any direct face to face contact, and he says that he has never in fact seen his son physically, face to face since 7 September 2016.
12. In January 2017, there was the first of a number of hearings before another judge sitting in the Family Court at Milton Keynes, namely District Judge Burgher. At a hearing on 18 January 2017 she reduced the duration of the weekly Skype contact from 1 hour to 10 minutes.
13. There was a very significant hearing before District Judge Burgher in August 2017 which concluded in her making a fact finding judgment on 3 August 2017. That judgment extends to about 35 closely-typed pages. PD supplied a copy of it to me today. I have dipped into it over the lunch break today, although I do not claim to have read it verbatim from start to finish.
14. It is certainly a very hard-hitting judgment. In a section towards the end headed "Discussion and Findings" the district judge said:

"178. Father in some aspects is an endearing and engaging man. He is also in many aspects from what I read about him, and have heard, a good man ...".

15. District Judge Burgher said at paragraph 206:

"206. Father is an incredibly clever man ...".

16. Clearly he is, for he is a highly qualified medical physicist who is currently training as a clinical scientist to conduct clinical medical trials.
17. The district judge said also at paragraph 189:

"189. I should add here that I have no doubt that this is a father who is a vulnerable man ... I have no doubt that he is a very anxious man and I have seen that at several stages ...".

18. District Judge Burgher said at paragraph 195:

"195. Father is a needy individual ... his needs are and were tremendous ...".

19. But, as I have said, the overall thrust of the judgment is very hard-hitting. The district judge also stated at paragraph 195:

"195. ... I find he did exercise controlling and coercive behaviour over this mother ...".

20. District Burgher said at paragraph 196:

"196. I have watched the immense control he has tried to exercise over mother in the course of these proceedings and his interference in all manner of ways ...".

21. In paragraph 204, District Judge Burgher referred to "... the sheer cruelty ..." of certain expressions used and repeated by the father in the court room.
22. At all events, those were some of the findings made in that lengthy and detailed judgment of August 2017.
23. At a further hearing before District Judge Burgher on 8 November 2017, she "suspended" the Skype contact altogether. It has in fact never since been resumed, so the upshot is that this father has not had even very limited Skype contact of ten minutes a week with his son for almost a year now since November 2017.
24. There was a further lengthy and very significant hearing before District Judge Burgher in January 2018 and February 2018. At the end of that hearing she gave another judgment which indeed extends to about 63 pages in transcript.
25. The father does not currently have a printed version of that transcript. He does have it stored on his laptop, but clearly I could not, during the course of a one-day hearing, read 63 pages of judgment from a laptop. If one allowed even two minutes per page to read it (and I would probably have needed more) that alone would have taken up at least 2 hours of an approximate 5-hour hearing.
26. The actual order made by District Judge Burgher at the conclusion of that hearing on 9 February 2018 is to the effect that the child should live with his mother. There was to be no contact at all, whether direct or indirect, between the child and his father. The address of the child was not to be disclosed to the father but was to remain confidential. The order does recite that the mother cannot lawfully change the surname of the child (which is that of the father, D) without either the permission of the father or a formal application to the court.
27. Finally, the court made an order under section 91(14) of the Children Act 1989 to the effect that the father may not make any application for an order under that Act with respect to the child for five years without the leave of the court. That is, indeed, an unusually long period for such an order to be made, but the order recites that:

"And upon the court determining that the mother needs time to recover following the conclusion of these proceedings and it being in the best interests of the child, necessary and proportionate in all the circumstances for there to be an order under section 91(14) Children Act 1989 for 5 years."

28. So the outcome of that hearing and the terms of that order were about as final and devastating for the father as it is possible to imagine. It is a matter of concern and the utmost regret that, although District Judge Burgher clearly directed that there should be "an expedited transcript of the judgment ... at public expense .." it seems that the official transcript of the judgment only emerged several months later during June 2018.
29. Today, PD did specifically draw my attention in particular to paragraph.196 of the transcript of that judgment in which District Judge Burgher described him as a "dangerous man" and stated that the danger is likely to increase rather than diminish. That indeed was part of her reason for imposing the restriction under section 91(14) of the Children Act 1989.
30. One of the bitter complaints made by the father is that that word "danger" or "dangerous" has now, as it were, cascaded into subsequent legal proceedings concerning him and created what he calls a "catastrophic failure of the process."
31. PD says that the judgments of District Judge Burgher have been used to his prejudice and disadvantage in possession proceedings in the Guildford and Brighton County Courts, to which I will shortly refer; and also that they were the, or a, trigger for the current criminal proceedings to which I will also shortly refer. But for now I will stick with the subsequent course of the family proceedings. As he was entitled to do, the father applied for permission to appeal from that judgment and order of District Judge Burgher of 9 February 2018. Quite rightly, the circuit judges who considered the application for permission to appeal were not willing to deal with it until there was available the approved official transcript of the judgment.
32. In the upshot, we now know that by an order dated 26 June 2018, still made in the Family Court at Milton Keynes, HHJ Hughes, who is apparently the designated family judge of Milton Keynes and Oxford, refused permission to appeal.
33. I think it is necessary and appropriate that I read into the present judgment the whole of the order of HHJ Hughes made on 26 June 2018.
34. It is headed "Order on appeal". It reads:

"On consideration of the appellant's notice and application for permission to appeal the decisions of District Judge Burgher both in a Fact Finding and a Welfare Judgment dated 3rd August 2017 and 9th February 2018 respectively

And on the court having read the entirety of two appeal bundles submitted by the proposed appellant, and noting:

1. The appeal bundles submitted contained pages considerably in excess of that indicated in the directions of HHJ Venables of the 21st March 2018

2. The skeleton argument alone comprised 200 pages

3. The proposed appellant purported to file additional evidence without permission that had not formed any consideration by the trial judge and are dated after the respective hearings

And on the court nevertheless considering permission as a preliminary issue on paper in accordance with the provisions of PD 30A.

The court orders

1. The application for permission to appeal is refused under rule 30.3(5A) as the application is totally without merit.

Reasons

On reading the transcripts of the judgments, as well as the voluminous appeal documents it is plain that the judge, in both meticulous and detailed judgments applied the necessary test in law, and determined the facts according to the requisite standard, in coming to a welfare based decision for the future stability of the child. Her decision could not be said to be wrong or unjust because of any serious procedural or other irregularity."

35. There is some further amplification of that decision and order dated 26 June 2018 in a letter written by an official in the Family Section of the Family Court at Milton Keynes, Helen Cleaver, to PD dated 20 July 2018. That reads as follows:

"The court has considered the request for an oral hearing. This issue was considered on 26 June 2018 when the court considered the application for permission to appeal on the papers and found that the appeal was totally without merit.


For the avoidance of doubt permission was not refused because of the excessive number of documents as the order itself makes plain, but on the merits, after detailed perusal of the documents. It is open to the designated Family Judge to refuse an application on the papers and to refuse an oral hearing, if, as in this case, the application is totally without merit.

The application for an oral hearing is dismissed."

36. The letter continues by being signed in type: "Yours sincerely, HHJ Hughes ..." above the name of Helen Cleaver. I infer, therefore, that although the letter may have been dispatched administratively by Helen Cleaver, it is a letter which was drafted or dictated, or at any rate approved, by HHJ Hughes himself.
37. PD is bitterly aggrieved by that decision of HHJ Hughes. He makes a number of complaints and comments upon the order of 26 June 2018, and what happened here.
38. First, he says that where the order recites that "the skeleton argument alone comprised 200 pages" that is quite wrong. He asserts that his "skeleton argument" was a single sheet of paper, of which he has handed up a copy to me today. That particular piece of paper does not have the appearance of what is conventionally understood as a "skeleton argument" but is, indeed, headed with the phrase:

"Different sources of false memory implantation (FMI) by traumatic real life events 2017-2018 as below."

39. PD has told me this afternoon that he did submit what he describes as a "case analysis" which he says extended in fact to 230 pages. It may be that there is some divergence between PD on the one hand and HHJ Hughes on the other hand as to nomenclature, or the description of documents. The likely explanation is that where HHJ Hughes referred to "the skeleton argument alone" the document he was referring to was the document that PD describes as a "case analysis", which PD himself agrees comprised, and indeed exceeded, 200 pages.
40. Next, PD is convinced that, by 26 June 2018, the bundles which he had lodged and the transcripts of the judgments were not in the possession of the Family Court sitting at Milton Keynes, but had been returned to him.
41. I cannot investigate the timing and chronology of that. The order of HHJ Hughes clearly asserts that he "read the entirety of two appeal bundles." It refers to "reading the transcripts of the judgments". I must proceed on the basis that at some time on or before 26 June 2018, HHJ Hughes was able to do, and did do, that which he said he had done, namely read the entirety of the bundles and, specifically, the transcripts of the two judgments.
42. Additionally, PD is very aggrieved that at paragraph 1 of the formal order itself, HHJ Hughes has stated that the application for permission to appeal "is totally without merit." There is indeed a difficulty with that phrase. It is the phrase which is to be found in rules and is now deeply embedded in various areas of our law and procedure. Of course, to an applicant or appellant nothing could seem more meritorious than their application. Nothing could be more meritorious than the desperate quest of a father to be able to establish some contact with his child.
43. What the phrase "totally without merit" means for these purposes, and is intended to convey, is that the application or proposed appeal is one which has absolutely no prospect of success. The reason why HHJ Hughes considered that the proposed appeals of PD from the decisions and orders of both August 2017 and February 2018 had no prospects of success, and therefore were, in the technical sense, "totally without merit", was that District Judge Burgher, to whom decision making was entrusted under our system as the judge of first instance, heard very extensive evidence on both occasions and gave detailed and reasoned judgments and decisions for the conclusions she reached and the orders she made.
44. I stress that I have not been able in the time available today to read both those judgments through as HHJ Hughes did, but it must have seemed to HHJ Hughes that the judgments did not disclose any errors of law and that the decisions which District Judge Burgher reached, and the orders which she made, were well within her discretion and were proper exercises of her discretion.
45. That, essentially, is where the position currently rests in relation to the Children Act proceedings and proceedings directly concerning the child. PD told me today that in the space of just over two years since the mother so abruptly left him there have now been about 19 hearings before Family Courts in relation to him.
46. I turn now to mention some other parallel legal processes. The father was arrested and charged with certain offences against the mother. I have not seen the formal written charges or subsequent indictment. PD told me today that he is now being prosecuted on three counts of causing actual bodily harm and a count of exercising coercive control over his wife.
47. PD says that those criminal proceedings were put in train, or given considerable further impetus, by the mother's solicitor sending to the Crown Prosecution Service a copy of the judgment of District Judge Burgher given in August 2017. PD has indicated today that he considers that he has been unlawfully charged with offences and unlawfully arrested a number of times in connection with these matters. The fact is, however, that today he is at liberty and freely before me.
48. As I understand it from what PD has told me today, the upshot is that there is currently a criminal trial proceeding against him in the Guildford Crown Court. It began on Monday 8 October 2018, which is now 9 working days ago. PD says that the trial has not proceeded continuously and there have been delays or interruptions, but essentially that he has been on trial before that court since Monday of last week and that the trial is continuing this very day. As I understand it, the stage was reached last night that the judge had commenced, but not finished, his summing up. It may well be that even as I sit here now at 16.20 today the jury are in retirement considering their verdicts, or have possibly even reached their verdicts. PD says further that at the outset of the trial he was not represented, although he has become represented during the course of the trial.
49. On 26 September 2018, PD issued in this court one of his number of claims for judicial review. In proceedings number CO/3794/2018 the essence of that claim was to seek some stay of the decision to charge him and a judicial review of the decision to prosecute him, and to delay, if not prevent, the criminal trial taking place. In that quest, PD has not been successful in that, as I have described, the trial is already taking place and is fast approaching its climax, namely the decision and verdicts of the jury.
50. The third set of legal proceedings to which I now refer is proceedings against PD brought by Raven Housing Trust, who are the landlords of the property which was rented by him and in which the family were once all living together at Walton-on-the-Hill.
51. Within those proceedings, which were issued in the Guildford County Court but appear to have been finally resolved in the Brighton County Court, an order for possession was made and orders for the eviction of PD. PD bitterly complains that the findings made against him within the family proceedings have themselves crossed over into those possession proceedings in the Guildford and Brighton County Courts, which is thus part of the "catastrophic failure of the process" which he says has occurred and overwhelmed him.
52. PD says further that HHJ Venables, who heard the original contact application in November 2016 and has apparently had subsequent involvement in the family proceedings in March 2018, has made comments on the internet which he feels have tainted and adversely affected the outcome of the possession proceedings.
53. As I understand it, what PD feels is that comments made by HHJ Venables had an impact upon District Judge Burgher, and that the decisions and judgments of DJ Burgher have in turn impacted the possession and eviction proceedings.
54. At all events, on 2 October 2018 PD issued another claim in judicial review in proceedings number CO/3863/2018, in which the Raven Housing Trust is made a party and by which he seeks to prevent his eviction. Those were placed, on paper, before Swift J on the day of issue, namely 2 October 2018, but Swift J, by his order of that date, refused to make any order for interim relief. As I understand it, the eviction has now taken place.
55. It is the understanding and belief of PD that there are accordingly three sets of proceedings for judicial review current before this court. They are, in chronological order, proceedings number CO/1251/2018, which he issued on 23 March 2018 in which he challenges in a range of ways the process and decision making of the Family Court in the proceedings relating to his son.
56. Second, proceedings under claim number CO/3794/2018, which he issued on 26 September 2018, in which he challenges the process whereby he has ended up currently being on trial for various alleged crimes.
57. The third is proceedings under CO/3863/2018, which he issued on 2 October 2018, in which he sought to stave off possession of the rented home in Walton-on-the-Hill and stave off eviction. These are, however, the last of several other claims for judicial review which PD has issued during the last two years. All of them, I think, ultimately arise out of, or are connected with, the breakdown of his marriage, the litigation in relation to his son, and knock-on effects in relation to his home, and now, criminal prosecution.
58. Frankly, the number of claims that have been issued do become bewildering. They have generated an enormous amount of paperwork and it may be, I do not know, that from time to time there has been some confusion by staff of this court as to exactly what claim or claims were being dealt with at any given moment.
59. PD complains bitterly also of the fact that he says a large number of transcripts of legal proceedings concerning him have either not been made or have been lost. He has said today that there are no less than 120 lost transcripts, which he says must amount to maladministration.
60. PD complains also about the conduct and deportment of District Judge Burgher, who, he says, at one or more points during the hearings that I have mentioned "screamed" and "fell ill."
61. But overarchingly, what PD has said to me is that "basically, I want to get my life on track with my son". I asked him what his reaction would be if I were to decide today not to grant permission in his various current claims for judicial review, but to dismiss them. He said, "I want to reconcile with the whole world and give my best to my son." He assured me that "This is my last judicial review", although he added, "unless exceptional circumstances arise, such as a need to apply for habeas corpus I will not ever come again to this court."
62. I began this judgment by expressing the sympathy which I sincerely feel for PD in his plight. His world may truly be said to have fallen apart in the last two years or so. His wife abruptly left him. He has not seen his son at all face to face since then. He initially had periods of Skype contact, the duration of which was reduced and then finally "suspended" but, in reality, terminated altogether, over a year ago. He has now lost his home. He now finds himself in the midst of a criminal trial on serious charges for which he is liable to be punished if convicted.
63. But feelings of sympathy in the end are not enough. It seems to me that there is simply no realistic prospect of success in any of the three current claims for judicial review that I have listed and described above. All of them, underlyingly, amount to claims that this court in judicial review should interfere with decision making and processes in the other courts concerned. It is perfectly true that in rare and very limited circumstances the High Court does have the jurisdiction to interfere with, and even quash, decisions of lower courts. But it is a jurisdiction that can be, and is, only exercised extremely rarely.
64. In so far as the family proceedings are concerned, it seems to me that, currently, they have essentially run their course, however painful that is to PD. There have been lengthy first instance hearings before District Judge Burgher. He has exercised his right to apply for permission to appeal. That has been rejected on paper, as he was entitled to do, by HHJ Hughes for the reasons given in the order of 26 June 2018, which I have quoted above.
65. There may be, or may have been, a very residual right indeed to apply to the Court of Appeal by way of appeal from the decision and order of HHJ Hughes. It would, however, be a case of a "second appeal" and the circumstances in which even the Court of Appeal can give permission for a second appeal are limited and circumscribed. That, however, is a policy decision made by rule makers and, ultimately, Parliament.
66. It does not seem to me, however, that there is any room at all in this case for residual judicial review of any of the decisions of either District Judge Burgher or HHJ Hughes. However understandable, this is ultimately an unwarranted and impermissible attempt by judicial review to attack regular legal proceedings.
67. I do not know whether or why a large number of transcripts have been lost. If they have, that is of course regrettable, but it does not, to my mind, ultimately undermine the decisions which have been taken.
68. In so far as proceedings number CO/3794/2018 are concerned, the plain fact is that PD has been arrested, and has been charged. There has been a decision to prosecute and a prosecution is taking place and is now almost concluded.
69. I say nothing as to what the position might theoretically have been prior to the criminal trial commencing, but it is frankly fanciful to imagine that the High Court sitting here in London, and hearing from the claimant alone, could, at this very late stage, interfere in any way whatsoever in the criminal trial that is taking place. It may indeed be that the jury have already retired to consider, or even given, their verdicts.
70. If (I stress if) it can later be shown that there was any illegality in the process such that any conviction (if PD is convicted on any charge) is unlawful or otherwise incorrect, then he may have an avenue of appeal to the Criminal Division of the Court of Appeal. But those proceedings are clearly entirely within the purview of the criminal courts and the criminal process, and this court in judicial review cannot possibly intervene.
71. Finally, in proceedings number CO/3863/2018, PD has now been evicted. That is as a result of apparently regular civil proceedings in the county court. It does not seem to me that there is the slightest scope now for judicial review. If (I stress if) there has been some unlawfulness in the process or procedure, he might have some civil claim for damages against the landlords in the county court, but there is nothing now that this court can do to "unscramble the egg".
72. For those reasons, which I appreciate PD will not, himself, feel able to accept, I propose to refuse permission to apply for judicial review in each of the three numbered sets of proceedings which I have listed and to which I have referred, and to order that each of those claims hereby stand finally dismissed.
73. It may be that there is some lack of clarity as to the status of some of the earlier claims for judicial review which PD issued, and I know that in at least one of those claims he has hoped that an earlier dismissal might now be revisited or reversed. But in order to create absolutely clarity for the benefit of the administration of this court, and indeed also for the benefit of PD, and to draw the clearest possible line, I intend to order in generic language that, for the avoidance of doubt, any claim for judicial review which has ever been issued by the claimant on or before today against any defendant or defendants, hereby stands finally dismissed if not already dismissed, and shall not be reopened or renewed. I thus draw a complete and firm line today that, as we leave this courtroom today, there are no subsisting claims for judicial review by PD whatsoever.
74. I have given consideration to whether or not to make a civil restraint order. PD has himself adverted several times to that possibility and is clearly aware that it is an order which I might be able to make in these proceedings today. I exercise my discretion not to do so for two reasons. The first reason is that, as is apparent from the above, at the heart of all this litigation and conflict lies the desperation of PD to re-establish contact with his son. Because of the subsisting order under section 91(14) of the Children Act 1989, he cannot in any event issue any further application of any kind in relation to his son without the leave of the court. That being so, it seems to me that, in so far as it relates directly to his son, any form of civil restraint order, whether a "limited" or an "extended" or indeed a "general" one, would really simply duplicate and overlap with the subsisting order under section 91(14). That in turn would have the effect that before he could make any application in relation to his son, he would require not only the leave or permission of the Family Court sitting in Milton Keynes, but also the leave or permission of a judge of this court.
75. That does not seem to me to be fair or right. Two hurdles should not be erected when one suffices. The correct and proper place for consideration whether and when there may be any further application in relation to the son is clearly the Family Court sitting in Milton Keynes, and I will not add a layer of complication by a civil restraint order.
76. The second reason is that, as I have already said, PD said very clearly to me today that this would be his last judicial review and, absent exceptional circumstances, such as the need to apply for habeas corpus, he will never come to this court again. So far as today is concerned, I intend to accept what PD says. He puts himself forward as an intelligent man and a person of integrity, who should mean what he says. So for that reason, too, I will not make a civil restraint order.
77. I will, however, direct that a transcript of this judgment must be made forthwith at public expense. It will of course be supplied as soon as it is ready to PD. A copy must also be kept on the files or records of this court. In the event that PD does issue any further claim for judicial review after today, a copy of this judgment must be placed with the papers in that claim when they are submitted for consideration by any judge.
78. For those reasons that is the order which I now make. So I am afraid, PD, that is the end of it for today.
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