Jersey Unreported Judgments

Judicial Review - application for leave to apply for judicial review

[2019]JRC028

Royal Court

(Samedi)

19 February 2019

Advocate D. C. Robinson for the Applicants.

judgment

the bailiff:

1.        I have received on 6^th February, 2019, an application for leave to apply for judicial review.  It is lodged on behalf of B and A and their four minor children.  If leave were to have been granted, the children would need to have a guardian ad litem appointed for them.

2.        The decisions in respect of which relief is sought are twofold:-

(i)        The decision by the Minister for Health and Social Services to remove the children from parental care and to retain them in foster care.  This was a decision taken on or about 16^th November 2018; and

(ii)       A decision by the Chief Officer of the States of Jersey Police Force to instigate police protection measures in respect of the children.  This was taken on or about 26^th November, 2018.

3.         The application form for leave to apply for judicial review sets out that the relief sought is declaratory relief and damages pursuant to Article 9(1) of the Human Rights (Jersey) Law 2000 (the "2000 Law").

4.        It appears that the application for leave has been made on a timely basis - the Minister's decision was made on 16^th November, 2018, the Chief Officer's decision it is said was made on 26^th November, 2018, and the receipt of a vote of legal aid was received on 30^th January, 2019.

5.        There have already been some judicial proceedings in relation to these children.  On 29^th November, 2018, the Deputy Bailiff granted an emergency protection order with regard to the children, his reasons being handed down on 30^th January, 2019.

6.        On 30^th November, 2018, the Royal Court refused to grant an interim care order in respect of the same children (Commissioner Clyde-Smith and Jurats Thomas and Pitman).  The reasons for that decision were handed down as file and parties only.

7.        Although the interim care order was refused, the Court did then order the preparation a psychological report in respect of both parents and children, and made other ancillary orders in relation to the ongoing care proceedings.

8.        On 11^th January 2019, the Deputy Bailiff, having considered the application of the Minister and email correspondence filed in support, granted the Minister leave to withdraw his application for a care order.

9.        The judgment of the Deputy Bailiff on the emergency protection order indicates that on 16^th November, 2018, the children were placed in foster care with the initial agreement of the parents. On 26^th November, the mother revoked her agreement and wanted the children returned to her, and as a result the States of Jersey Police invoked their powers of protection pursuant to Article 41 of the 2002 Law, taking the children into police protection.  That period of police protection was due to expire on the evening of 29^th November when there was an application for the emergency protection order immediately prior to the hearing listed for the following day for the interim care order. Understandably the Deputy Bailiff considered that the prospect that the children might be removed from foster care and returned to their parents on 29^th November and the following day removed again from the parents and placed back into foster care was particularly unusual and informed in a significant way his view of the potential harm that might be caused if he did not accede to the Minister's application for an emergency protection order.

10.      On the current application for leave to bring proceedings in judicial review, the parents wish to assert that the consent which was purportedly given on 16^th November, 2018, was not a real or effective consent for the purposes of Article 17 of the Children (Jersey) Law 2002, and therefore the Minister did not have lawful authority to accommodate the children.  If that is established there is then a claim for a declaration and damages under the 2000 Law.

11.      As regards the actions of the States of Jersey Police Force, it is said that these were neither necessary nor proportionate having regard to the possibility of the Minister applying for an emergency protection order.  A claim is similarly made for a declaration and damages under the 2000 Law.

12.      Having heard from Advocate Robinson in Chambers, in my view it is apparent that this is not an appropriate process for adjudicating the claims of the parents.  Judicial review is a process by which courts review, generally on affidavit evidence and with limited discovery the allegedly unlawful activity of a public authority, whether that activity is said to be illegal, irrational or governed by procedural impropriety.  This form of process is not appropriate for the present claims, which in my judgment should be commenced by Order of Justice.

13.      By Article 7(1) of the 2000 Law it is unlawful for a public authority to act in a way which is incompatible with a Convention right.  By Article 8(1) of the 2000 Law:-

"8       Proceedings

(1)       A person who claims that -

(i)        a public authority has acted, or proposes to act, in a way which is made unlawful by Article 7(1); or

(ii)       the States Assembly has acted in a way which is made unlawful by paragraph (4) of that Article,

may-

(a)       bring proceedings against the authority or, in the case of the Assembly, the States, under this Law in the Royal Court; or

(b)       rely on the Convention right or rights concerned in any legal proceedings,

but only if the person is (or, in the case of proposed action by a public authority, would be) a victim of the unlawful act."

14.      It is apparent therefore that the parents could bring proceedings in the Royal Court alleging a breach of the Law and of their Convention rights.  They are in time to do so because any such claim must be brought within a year of the date on which the respective acts complained of took place.

15.      By Article 9 of the 2000 Law the Court has power to award damages as well as utilising its other powers as are considered just and appropriate - this would include the grant of a declaration.

16.      I note that Article 10 of the 2000 Law refers to proceedings under Article 8 in respect of a judicial act, which provisions therefore do not apply to the present application.

17.      Part 9A of the Royal Court Rules 2004 contemplates that proceedings can be brought by order of justice.  The Rules make provision for the filing of an answer and if appropriate a reply.  The reference to the pleadings makes it plain that the Rules of the Court dealing with disclosure and interrogatories and so on would apply to claims under the 2000 Law brought under Part 9A as they would to any other civil claim which is brought.

18.      Advocate Robinson submitted that Rule 16/1 of the Royal Court Rules, dealing applications for judicial review, stood in the way of bringing proceedings other than by way of judicial review.  It provides:-

"(1) Except in cases where an appeal is available against a decision of a public authority or body, and subject to paragraph (3), an application for a declaration, injunction or any other order in any public law matter must be brought by way of an application for judicial review made in accordance with this part unless the Court otherwise orders."

19.      He then referred me to In the matter of W and J (child custody) [2012] JRC 174.  This case concerned an application by the Minister to strike out an application brought by the guardian for two minor children for a declaration under the 2000 Law.  The application was brought within the existing family proceedings.  The background circumstances were that following a care order made by the Royal Court, the Minister had removed the children from the care of their parents and it was that action which, by the second set of proceedings, the guardian sought to have declared unlawful, with claims for damages.  Accordingly, the application seeking that declaration and damages under the 2000 Law was brought using form C1, a form stipulated for use within proceedings under the Children (Jersey) Law 2002.  In that case the Royal Court (Clyde-Smith, Commissioner and Jurats Fisher and Olsen) decided that Rule 16 of the Royal Court Rules was mandatory - reliance being placed on Trant v AG and others [2007] JLR 231.  At paragraph 15, having referred to Rule 16/1(3), Commissioner Clyde-Smith said this:-

"However there seems little doubt that in the first instance the guardian's second application should have been brought under Rule 16/1 by way of judicial review.  The wording used is mandatory 'must be brought'.  The point was made by the Court of Appeal in Trant v AG and others [2007] JLR 231 in the context of an order of justice seeking declarations, orders and injunctions in relation to decisions made by the Attorney General where Beloff JA said this at paragraph 34:-

'34. I would add that this particular challenge should strictly have been brought by way of application for judicial review.  Rule 16/1(1) of the Royal Court Rules states that any application for a declaration, injunction or other order in any public law matter must be brought in such a manner, and para. (2) of that Rule provides that 'an application is made in a public law matter if the application relates to the validity of a ... decision ... or other action of a public authority'. The Attorney General, in this context, is clearly a public authority and what is alleged is that his action in seeking assistance from the UK authorities is invalid.'"

20.      For these reasons the Royal Court decided that the claim of the guardian should be struck out as it had not been brought in proceedings by way of judicial review.  It is to be noted that there was no analysis in Trant of the provision in Rule 16/1(1) enabling the Court to make an order that an application for a declaration injunction or any other order in a public law matter could be brought other than by judicial review.  The full language of the Rule includes the words at the end of that sub-paragraph "unless the Court otherwise orders".

21.      I take it that sub-Rule 16/1(3) applies without question to the "unless" provision I have mentioned.

22.      The fact is that Rules 9A and 16 of the Royal Court Rules have a tendency to work in different ways.  Rule 16 was introduced to ensure that there was a judicial screening process for actions brought by way of judicial review.  That is the effect of Rule 16/1 and 16/2.  Rule 9A, which is very likely for the most part to include claims against a public authority and therefore amount to claims in a public law matter, provides that any form of commencing those claims would be adequate - see the definition of "pleading" in Rule 9A/1(1).  For my part, I have some doubt as to whether it would be right to say that every claim under the 2000 Law should be brought by way of judicial review pursuant to Rule 16.  This does seem to be the effect of Re W and J.  However, I do not need to go so far as reaching a contrary view to that in Re W and J for the purposes of this decision.  What I can recognise immediately is that the Royal Court Rules contemplate that claims under the 2000 Law may be brought by order of justice and I can immediately note that if this present claim, which is heavily fact dependent, were to be brought by order of justice, that would provide a much more convenient way to have discovery and such other interlocutory orders made which would enable the court of trial to assess the facts properly on the evidence.  The circumstances are such therefore, for the purposes of Rule 16(3) that commencing these proceedings by way of judicial review is a firm second best to commencing them by order of justice.

23.      Accordingly, taking advantage of the exception in Rule 16(1) "unless the Court otherwise orders" I refuse leave for judicial review and order that if the Applicants wish to bring these proceedings, they should do so by order of justice, leave being given to them for that purpose.

24.      For the avoidance of doubt, leave to commence judicial review proceedings is refused because of the alternative remedy available as set out.

Authorities

Human Rights (Jersey) Law 2000. 

Children (Jersey) Law 2002. 

Royal Court Rules 2004. 

In the matter of W and J (child custody) [2012] JRC 174. 

Trant v AG and others [2007] JLR 231.