LAU, R (on the application of) v The Family Court at Croydon

This is an application for permission to appeal against the order of Mr Benjamin Douglas Jones, KC, sitting as a deputy High Court judge in the Administrative Court ("the Judge") dismissing the applicant's renewed application for permission to apply for judicial review and certifying it as totally without merit, which means bound to fail. The task of this court is to ascertain whether any of the proposed grounds of appeal is arguable with a real prospect of success. It is not concerned with the rights and wrongs of, let alone the proportionality of, any orders made by the Family Court or by any judge on appeal in the underlying family proceedings.

The task of the Judge was to ascertain whether any of the grounds for judicial review was arguable with a real prospect of success. In so doing, he was not required to address each and every submission made by the applicant in his lengthy skeleton argument, so long as he engaged with the substance of the grounds of judicial review set out in a Statement of Facts and Grounds served with the claim form, and gave sufficient reasons to explain why he had concluded that they did not meet the threshold for permission.

The Judge delivered an ex-tempore judgment on the day of the hearing, 21 April 2026, and the transcript which he approved is in the core bundle. The original order contained errors, including a reference to the hearing taking place on 17 February 2026. Those errors were corrected under the slip rule, and the corrected order was sealed on 26 May 2026.

On the same day, prior to the transcript being uploaded to the National Archives website, the Judge made an order of his own motion pursuant to CPR 39.2(4) and/or the court's inherent jurisdiction and/or s.6 of the Human Rights Act 1988, directing that the names of the applicant, the First Interested Party and their child are to be withheld from the public and must not be disclosed in any proceedings in public; assigning ciphers to each of their names; and ordering, pursuant to section 11 of the Contempt of Court Act 1981, that there must be no publication of their identities or of any matter likely to lead to their identification in any report of or otherwise in connection with these proceedings.

The case relates to private law child arrangement proceedings in the Croydon Family Court, case number ZE24P00051, concerning the applicant's young daughter, now aged 9 ("the family proceedings"). We consider that the order made by the Judge under CPR 39.2 was an appropriate and proportionate interference with the principle of open justice, bearing in mind the best interests of the child, and accordingly we will direct that an order for anonymity and reporting restrictions will be made in the same terms and shall apply to all proceedings in this court.

The background is that the applicant filed an application for contact with the child on 19 January 2024. On 18 March 2024 HHJ Major made an order suspending direct contact. The applicant was refused permission to appeal against that order by Peel J, who certified the application totally without merit. Following a subsequent final hearing, HHJ Major made a final order on 25 November 2024, which prohibited the applicant from all direct contact with the child, and contained an order under s.91(14) of the Children Act 1989 requiring the applicant to obtain permission to make any further application relating to contact with the child. She reserved any such application for permission to herself. The s.91(14) order expired on 25 May 2026, and we will deal in due course with the ramifications of that.

The applicant sought permission to appeal against the order of 25 November 2024, which was refused by Henke J on 17 March 2025 and certified totally without merit. Among the grounds on which she refused permission were a complaint that the hearing had been procedurally unfair, in breach of Article 6 ECHR; a complaint that HHJ Major should have held a fact-finding hearing; a complaint that the NYAS guardian was racially prejudiced; and a complaint that HHJ Major was demonstrably biased against the applicant.

On 24 March 2025 HHJ Major made an order belatedly dismissing an earlier application for interim contact, which had been made by the applicant in August 2024. Her reasons were that: "the substantive proceedings are concluded and have been subject to an unsuccessful appeal". On 19 June 2025 Cusworth J refused permission to appeal against that order, certifying the application totally without merit. He stated that the issues canvassed in the August 2024 application were fully raised by the applicant repeatedly in advance of and during the final hearing conducted by HHJ Major, and were addressed by her in her judgment. He said, quite rightly, that the appeal against the 24 March 2025 order could not act as a review of the reasons for dismissing the appeal against the final order which was made in November 2024.

Following the refusal of permission to appeal by Cusworth J, the applicant made an application to the High Court, Family Division for an order setting aside the two orders of 25 November 2024 and 24 March 2025. On 5 November 2025, Cusworth J refused to entertain that application. His directions are quoted in paragraph 8 of the Judge's judgment. Cusworth J obviously thought the application was an abuse of process, because it was "seeking to overturn the original decision by what must be classified as a further appeal against it." He told the applicant that any application to "set aside" must be brought in the court which made the order he was seeking to set aside, namely, Croydon Family Court. He also pointed out that before any such application could be made, the applicant would need to obtain permission from the judge under the s.91(14) order.

The bundles before us contained an email timed at 6.00 am on Monday, 5 January 2026, addressed to Croydon Family Court and various others, including the litigation team at HMCTS, but they did not include the application which the applicant complains was not issued or progressed. The Judge did not see it either; see his judgment at paragraphs 50 and 54. The claim for JR referred to it unambiguously as an application "to set aside" the two previous orders. So does the draft order the applicant sought by way of interim relief, and so too does the Statement of Facts and Grounds. Yet it appears from paragraph 46 of the judgment that the applicant submitted to the Judge that his application was an application for permission to apply to remove the s.91(14) order and for a reconsideration of the section 8 order under the Children Act by virtue of a change of circumstances. He told the Judge that the reference to a "set aside" application in his correspondence with the High Court, Family Division was a "red herring".

We asked to see the application that was made in January, and the applicant helpfully provided the court with the application notice, a lengthy witness statement served in support and the draft order he was seeking. Two things are now clear. First, there is no application for permission under section 91(14). Secondly, the application was indeed an application to set aside the orders made by HHJ Major, which tallies completely with how it was described in the Statement of Facts and Grounds. Insofar as other matters were raised, it can be seen that they were in support of the applicant's application to set aside those orders, for example, what are described as "Human Rights Claims as the foundation for set-aside". The entire document is directed towards attacking the substantive orders, and subsequent orders, including Henke J's dismissal of the application for permission to appeal against the November 2024 order as being totally without merit. The draft order provided with the application makes this abundantly clear. Paragraph 1 asks for the original orders to be set aside. Paragraph 2 attacks other orders, and the draft continues by setting out various orders consequential on the setting aside, such as restorative orders. There is nothing in the draft which provides for permission to make any of these applications.

When the court pointed out this lacuna to the applicant, he asserted that he did make an application for permission. He said that in any event his application was not rejected on the basis that he did not have permission to make it. As to the first assertion, he pointed to a passage on the first page of his witness statement, which merely said: “this application cannot lawfully be placed before HHJ Major for determination of permission or substance as she is fundamentally conflicted.” That is not an application for permission.

The order under s.91(14) was still in force at the time of lodging the set-aside application and at the time of the hearing of the application for permission to proceed with the claim for judicial review. It remained in force unless and until any challenge to it succeeded. That order meant that the applicant could not make a substantive application for any order relating to contact with the child unless and until he had first and obtained the court's permission to make that application. That in turn meant that the court office was under no obligation to issue a substantive application unless and until that permission was obtained. The only type of application that it was permissible to make at that time was an application for permission under s. 91(14), and no such application was made.

Section 91A(4) of the Children Act provides that the court must, in determining whether to grant leave, consider whether there has been a material change in circumstance. The applicant accepted this when it was put to him by the Judge, but said that his complaint is that the matter never got to the stage where a judge looked at the question whether to grant permission to make the application, because the application was never issued. He says HMCTS has never given any explanation for its failure to do so. In his oral submissions this morning, he asserted that the only judge who could have considered the permission application was Judge Major, and that an administrator had no power to refuse to place his application before her, but as we have said, there was no such application.

The applicant points to the fact that he no longer needs permission. He complains that the continuing delay is causing irretrievable prejudice in terms of the adverse impact on the bond between him and the child, which can only get weaker as time passes, and sets it against a background of earlier delays in the course of the family proceedings. Whilst that has some relevance, the relief that he seeks in these proceedings is an order directing that the application he made on 5 January 2026 be issued.

The claim for judicial review was issued less than two weeks after the application was lodged on 18 January 2026, with a request for urgent consideration. The defendant is named as "HMCTS Family Court Manager, Croydon Family Court". It is clear that the public body about which the applicant is complaining is HMCTS in its administrative capacity, because its staff are responsible for issuing and processing applications and for sending them to judges for consideration on the papers, or making arrangements for an oral hearing before a judge. Listing decisions, including decisions about which judge should or should not consider an application, are a judicial function.

The applicant is not complaining about a decision made by a judge but about what he describes as a procedural impasse, which he says is obstructing his access to justice and usurping the judicial process in a context where his right and the right of the child to family life is engaged. He says there is unjustified inactivity which is indefinite and has not been explained, and that this alone is sufficient to found a claim for judicial review.

The fact that the Judge referred to the defendant in his judgment as "the Family Court" by way of shorthand is not an arguable basis for an appeal, since it is plain from reading his judgment as a whole that he was well aware of the nature and substance of the applicant's complaints and that they were made against the court administration, and dealt with them appropriately. By way of example, he referred at paragraph 41 to "administrative inactivity" and at paragraph 42 to the submission that HMCTS administrative officials had usurped the judicial process by failing to place applications before a competent judge for listing.

The applicant sought an order directing the defendant amongst other matters to "formally issue the claimant's application to set aside filed 5 January 2026 in proceedings ZE24P00051 and place the issued application before the designated family judge for Croydon (MacDonald J) for an immediate direction on allocation". However, the claim for interim relief also sought an order compelling MacDonald J to give directions allocating the set-aside application for permission and all further hearings to a judge at the High Court, Family Division. That part of the claim, at least, was completely misconceived. Section 3 of the judicial review claim form also stated that he was seeking "mandamus to compel HMCTS and its Croydon Family Court Manager to list child contact case with expeditiously [sic] as required by the Human Rights Act and compatibly with the ECHR". The applicant now says in paragraph 8 of his skeleton argument in support of his application for permission to appeal that "the remedy sought is not to compel any judge to list any case -- a judicial function". But as we pointed out, that flies in the face of his own claim. His response to that when it was put to him this morning was that he had sought other remedies which were naturally prior to any question of a judge deciding on matters such as who should hear the application.

In the Statement of Facts and Grounds annexed to the claim form, the applicant stated that:

By the time the application for interim relief in the JR proceedings was considered by Lang J, the applicant had not yet received a response to his application. Lang J made no order on the application for interim relief on 21 January 2026, because she considered that the claim for judicial review lacked merit. As she said, generally the Administrative Court will not make orders which direct judges in the Family Courts, in particular High Court judges, how to manage their procedures. She did however direct expedited consideration of the application for permission to apply for JR.

The application for permission to apply for JR was refused on the papers by Deputy High Court Judge Aidan Eardley KC on 20 February 2026. The only relevance of that decision, which was superseded by the decision of the Judge following the renewed application for permission to apply for JR, is that the order recorded the factual developments that had taken place since 21 January. On 21 January the applicant received a letter from Croydon Family Court dated 16 January 2026, which said his N244 application notice and additional documents had been referred to a Circuit Judge for directions and that the judge made the following comments:

The applicant contends that this communication supports his analysis that no judge has ever considered whether to refuse the application on the basis that he had not obtained the necessary permission to make it. It is not clear whether the Circuit judge was aware of the s.91(14) order, but what is clear is that he was explaining that the court had no jurisdiction to entertain the application to set aside on the basis of the grounds set out in the application under the heading "Grounds: preliminary summary of Mischief for set aside".

Thus, by the time of the renewed application, a circuit judge had said that there was no jurisdiction to entertain an application to set aside a final court order made by another circuit judge. There is no obligation to issue, let alone progress proceedings if the court lacks jurisdiction to entertain them. The applicant contended that a decision of that nature can only be made by a judge, but it was. The fact that the email referred to the judge's response as “comments” does not undermine its validity, and the administrative staff cannot be criticised for acting in accordance with it. Indeed, it would not be in accordance with the overriding objective to take up court time on an application for permission to bring an application which the court would have had no jurisdiction to entertain. That point is independent of the fact that there is no power to issue any substantive application without an order granting permission.

FPR 27.5 is concerned with the situation in which an order is made in the absence of one of the parties. It is accepted that that was not this case. Final court orders had been made at hearings attended by the applicant, and permission to appeal against those orders had been refused. On the face of it, the Family Court has decided in substance that those orders were a proportionate interference with the applicant's and his daughter's Article 8 rights. His appeals from those orders have been dismissed as totally without merit, supported by extensive reasons. Those orders are final and cannot be impugned in this manner. As Cusworth J had already informed [R], he cannot make a further appeal in the guise of an application to set aside the orders. That is an abuse of process.

This is not the type of situation that was being addressed by the European Court of Human Rights in MK v Poland, which was concerned with ongoing family proceedings where the mother's initial residence application was not even considered by the court for seven months. Nor is it similar to the situation in EK (Latvia), where there had been a flouting of court orders by the other parent, and the Strasbourg court decided that the authorities had been insufficiently proactive in providing the aggrieved party with a remedy. In this case the father's application for contact had been dealt with on an interim basis within two months and finally determined within nine months, though not in the way he would have wished. To all intents and purposes the family proceedings are at an end. This was a point made by the Judge, and it is a good one.

The Statement of Facts and Grounds gives some flavour of the set-aside application (although we have now seen the original). It contains, amongst other matters, an allegation that the child was represented by an unauthorised litigator, an allegation that the guardian was unqualified, biased and discriminatory, an allegation of sustained judicial bias and various other allegations of impropriety on the part of HHJ Major, and what is described as "a wholesale failure at first instance and High Court appellate tier to apply the proportionality test mandated by the Supreme Court in RE B". None of those matters relate to events occurring after the final hearing which might justify the making of a fresh order. On the face of it, all those matters could have been raised as grounds of appeal. If they were raised as grounds of appeal and permission was refused, then they cannot be raised again by these means, as that would constitute a collateral attack on the decision to refuse permission to appeal and an abuse of process. If they could have been raised as grounds of appeal but were not, then it is likely that to try and raise them again in this manner would also be an abuse of process under the rule in Henderson v Henderson [1843] 3 Hare 100.

On the face of it, irrespective of the absence of permission, a rational basis for refusing to allow the application to set aside these orders or an application for permission to make such an application to proceed was given in the letter on 16 January 2026 , sent within the two-week deadline set by the applicant in his PAP letter. The inactivity complained of was no longer unexplained.

There were three grounds for judicial review set out in the Statement of Facts and Grounds, namely: (1) unlawful failure to provide access to a court/failure to determine an application within a reasonable time; (2) failure to adopt a lawful course to resolve a procedural impasse; (3) failure to comply with the overriding objective. Grounds 2 and 3 added little or nothing to Ground 1. The essential complaint was that the application had not been put before a judge for consideration within a reasonable time, and that this constituted a breach of Articles 6 and 8 of the ECHR. But the application had been considered by a circuit judge by 16 January 2026 and directions given which were relayed to the applicant. If the judge would have had no jurisdiction to consider the application, a failure to issue it or put it before a judge could not possibly be a breach of any public law duty.

The applicant's grounds for renewal of his application for JR appear to treat the renewed application as some kind of appeal against the refusal on the papers. It was not. It was a completely fresh hearing. There is no reason for us to doubt that the Judge gave fresh consideration to the applicant's submissions, supported by the Strasbourg cases on which he relied, as he said he did. The Judge cited all the relevant cases regarding the approach taken by the Administrative Court when asked to exercise its review jurisdiction over matters occurring in the County Court. Whilst the case law is generally concerned with complaints about decisions by judges of the lower court, the same principles apply with equal force to decisions of an administrative nature taken in proceedings before such a court. A gross procedural error amounting to a denial of the right to a fair hearing is an illustrative example of the type of behaviour which might lead the Administrative Court to intervene.

The threshold remains that the claim for judicial review must be arguable with a real prospect of success, but what such a claim must be able to demonstrate in order to succeed is indicated in those authorities. Applying those principles is not elevating the threshold for permission. The Judge considered that none of the circumstances of this case suggest that the delay following the filing of the application in January 2026 came remotely close to the kind of circumstances in which the Administrative Court would interfere. That evaluation was not irrational. The delay by then was less than four months, and in any event a legitimate reason had been provided for refusing to entertain the application. The fact that a further valid explanation could have been given or relied upon, but was not, does not improve the applicant's position.

Having reminded himself of the circumstances in which the Administrative Court might interfere with matters in the lower court, the Judge then dealt with the points made in the skeleton argument. In my judgment he addressed each of them in substance and sufficiently, and made clear and cogent reasons for reaching the conclusion that the threshold for granting permission to proceed with the claim is not met.

The applicant's lengthy grounds of appeal run to twelve pages. The skeleton argument is far from skeletal. Neither complies with PD 52A or 52C. The grounds of appeal must identify as concisely as possible the reasons why the judgment of the court below was wrong or unjust because of a serious procedural or other irregularity, and must not include the reasons, which must be confined to the skeleton argument. The skeleton argument in turn is supposed to be a concise encapsulation of the arguments upon which the party ceases to rely. Litigants in person are not exempt from these requirements, but must follow the rules of civil procedure like everyone else.

The main contention is that the Judge "evaded the submissions in the skeleton argument" for the renewed application, identifying nine core propositions advanced under each of the grounds in the skeleton argument (Ground 1). Next, it is alleged that the Judge worked from a different bundle from the one the applicant had (Ground 2). Ground 3, which I have already addressed, is that the Judge wrongly elevated the threshold for permission. He plainly did not. Ground 4, which overlaps with Ground 1, is that he ignored binding Strasbourg and domestic authorities. Ground 5 is that he "usurped the role of the Solicitors' Regulation Authority". Ground 6 is that he failed to address undisputed evidence of flight risk. Ground 7 is that his decision was vitiated by an appearance of bias and what is described as “procedural manipulation”. Ground 8 is that he failed to determine and effectuate the required role of the Administrative Court in EK v Latvia. Ground 9, which again overlaps with Ground 1, is that he described the s.91(14) order as “draconian” but failed to address the need for a judge to determine permission. Ground 10 is a complaint of internal inconsistency. Ground 11 is that the Judge made "legally nonsensical statements". Ground 12 is that he gave no reasons for the totally-without-merit certification. Ground 13 is that he "roamed into Family Court jurisdiction without permission".

None of these arguments has the slightest prospect of success. Ground 1, which is the main ground, is hopeless. The contents of a skeleton argument are merely submissions. There is no obligation to address each and every submission made in support of a party's case. As I have said, the Judge's task was to decide if any or all of the three pleaded Grounds for judicial review had a real prospect of success at a substantive JR hearing. The fact that the claim was being made about the delay since January in issuing and listing an application or applications lodged in the lower court, was a relevant consideration in that evaluation. The Judge was plainly aware that this was the nub of the complaint and that the claim did not relate to any judicial determination or behaviour. There is no material distinction to be drawn between a case in which the named defendant is the court and the named defendant is a person responsible for the administration of the court. HMCTS is the substantive defendant in either case.

The fact that the applicant had not seen the Acknowledgement of Service filed by HMCTS is regrettable. But that is not the Judge's fault, and in any event the applicant was not disadvantaged by it, since it must have been obvious that HMCTS were not taking any active role in the proceedings. The applicant complains that the Acknowledgement of Service, which he still has not seen, was seemingly premised on the defendant being a court. But I have already addressed his complaint about the Judge being misled into thinking that the complaint was about a judge, and there is nothing in it. The applicant contends that the court manager was "not entitled to be neutral," but that betrays a misunderstanding of what was meant by neutrality in this context. It simply meant that the defendant was not going to take any positive stance in relation to the proceedings for JR, either by filing Summary Grounds of Defence, or by making any concessions as to the merit of the Grounds. It did not mean, as the applicant appeared to believe it meant, that there was no obligation to take steps in respect of his application in the Family Court.

I am satisfied that the Judge engaged sufficiently with the Grounds for judicial review and with the applicant's submissions about them, and that he gave clear and sufficient reasons for his decision. The argument that he did not is bound to fail. There is nothing nonsensical about his reasoning. Insofar as the applicant is dissatisfied with anything the Judge said to him after his judgment was handed down, it has no relevance to the question whether there are arguable grounds for appealing against the refusal of permission to proceed with the application for JR There was no arguable internal inconsistency in the judgment.

The allegation that the child's mother was a relevant flight risk because she had sold her property was addressed by the Judge at paragraph 43. This may have had some relevance to whether the application should be determined urgently because of the alleged ongoing prejudice caused by the delay. But it has no relevance to the underlying merits of the claim that there was an unexplained and unjustified failure to progress the application. The Judge was plainly well aware of the case that was being advanced by the applicant, and he dealt with it fairly and squarely on its merits. He was not persuaded that it was arguable that the administrative inactivity since January was of such a nature as would lead to the Administrative Court interfering. He was not only entitled to take that view, but he was plainly right.

The Judge may have a criminal practice background, but he is authorised to sit as a Deputy High Court judge in the Administrative Court, and there is no reason why he should not have heard this case. The fact that the applicant was expecting the hearing to be listed in front of someone else provides no foundation for the allegation of an appearance of bias. The test in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 is not even arguably engaged. As to the allegation about the different bundle, I am satisfied that the Judge did not consider any materials which he was not entitled to consider. He addressed the Strasbourg and domestic authorities upon which the applicant relied, particularly MK v Poland, with care and in sufficient detail. He dealt perfectly adequately with the submissions about EK at paragraph 49.

The complaint about usurpation of the role of the Family Court is fundamentally misconceived. There was nothing wrong with the Judge asking to see the orders that were the subject of challenge. They were obviously of relevance. When the applicant refused, the Judge simply noted the position in his judgment at paragraph 50. He made no criticism of the stance that the applicant had taken, but pointed out how it hampered his ability to carry out an evaluation of the practical consequences of the delay. He was entitled to do so, and the fact that he did is not an arguable basis for an appeal.

It was the applicant himself who raised in his oral submissions a complaint that an unauthorised person represented the child at the hearing, so the Judge cannot be criticised for dealing with those submissions, as he did briefly at paragraph 45. He was not usurping the regulatory role of the SRA, and in any event that allegation has no bearing on whether he was right or wrong to find that the claim for JR did not get across the threshold for permission.

There was no need for the Judge to set out separate reasons for concluding that the claim was totally without merit, since this was more than apparent from his reasons for finding that the threshold of arguability was not met. He said that the delay did not come "remotely close" to the type of circumstance in which it may be appropriate to hold that there has been an abrogation of the judicial process, and he described other arguments as "without foundation" or as having "no arguable basis". If something is completely unarguable, it is self-evidently bound to fail.

We are conscious that matters have moved on since the Judge's decision. The order under s.91(14) has expired, and the applicant no longer needs permission to make an application to the Family Court. That does not affect the substantive claim for judicial review, which relates to inactivity at a time when he did need permission, but it does mean that the claim has been overtaken by events, and no useful purpose would be served by granting permission to appeal in these circumstances, even if the Grounds were arguable, which they are not.

The applicant has provided an update with supporting documents, which indicate that since the judge's decision, Lieven J directed that a fresh application by him made on 18 May 2026 be issued in Croydon. There were further directions by HHJ Roscoe that that application could be issued once the s 91(14) order expired, and by Deputy High Court Judge Warshaw KC, who said that it must be issued in Croydon rather than in the High Court. The HMCTS team leader at the Royal Courts of Justice wrote to the applicant on 19 May saying that he had misinterpreted the gatekeeping judge's direction, which was that he should make his application to Croydon, not the High Court, and that Croydon Family Court would determine allocation.

The applicant then issued an urgent application in the Family Court for an order compelling HMCTS to issue his latest application to set aside. MacDonald J rightly stated on 13 July 2026 that the Family Court had no power to issue a mandatory order of the type he sought, and that any application for mandatory relief with respect to administrative action is properly made in the Administrative Court, subject to permission being granted. What that boils down to is that if a substantive application is made in the Croydon Family Court, it will be for that court to consider any questions of jurisdiction to entertain it, but any complaints about the ongoing failure of HMCTS to issue the application must be made in the Administrative Court, because only that court has the power to make a mandatory injunction against a public body. This is not intended to give any indication as to what application, if any, the applicant should be making to either court. For the avoidance of doubt, we make it clear that we are not directing him to make an application anywhere.

The applicant appears to be frustrated by the fact that in these changed circumstances, this court is not going to consider the current state of affairs. But as I have said, the only application that is extant in the claim for judicial review is an application for an order directing the issue of the application that was put before the Family Court in January 2026. There is no other application which is the subject of this appeal.

I would therefore refuse the application for permission to appeal as totally without merit. None of the Grounds is remotely arguable. We have considered whether the time has come to make a civil restraint order, but it seems to me that an evaluation of that nature is probably best left to the Family Court. We have considered the applicant's informal application for disclosure. It is neither necessary nor appropriate for us to make any order for disclosure as sought, and accordingly I would dismiss that application.

I agree.