X and Y, R (on the application of) v Gloucestershire County Council

These are judicial review proceedings. They arise in unusual circumstances. They raise a point of practice which is of importance to all lawyers concerned with emergency protection or care proceedings under Parts IV and V of the Children Act 1989. The point is whether it is appropriate for parents anticipating the likely commencement of such proceedings in the Family Proceedings Court to seek to prevent that happening by means of an application to the Administrative Court for judicial review and injunctive relief. The plain fact, in my judgment, is that it is not.

X and Y, as I shall call them, are respectively the father and mother of an unborn baby. I shall call him M – it is known that he is a boy. His expected date of delivery is Wednesday this week, 16 April 2003. X was born in 1972 and is now aged 30: Y was born in 1978 and is 25.

X has five other children by four different women. One was born in 1991, another in 1995, one in 1997 and one in 2002. X does not see any of these children: some of the mothers have made various allegations of domestic violence against X that he vigorously disputes. X’s youngest child, a boy who I shall call J, was born on 17 February 2003. J’s mother – she is not the mother of any of X’s other children – is a woman I shall call Z. J is the subject of care proceedings begun by Gloucestershire County Council. Those proceedings have been transferred to the High Court and came before Her Honour Judge Darwall Smith (sitting as a judge of the High Court) on 28 March 2003, when an order was made joining X as a party to the proceedings. The next hearing of those proceedings has been fixed for 23 April 2003, again before Judge Darwall Smith or another section 9 judge. I understand that Z’s idea is for J and M to be brought up together by X and Y.

X is a Schedule 1 offender, having been convicted in 1992, and again in 1993 and 1999, of unlawful sexual intercourse with under-age teenage girls.

Y has three children. The eldest, born in 1996, and the next, born in 1999, have both been taken into care and adopted. The third, born in 2001, although subject to child protection procedures was not taken into care but placed, with Y’s agreement, under a residence order with a family member. Y has mild learning difficulties. A psychiatric report prepared in August 1997 for the purpose of the care proceedings in relation to her eldest child is considered by the local authority to be “very damning” of her abilities to parent that child.

An initial assessment by a social worker on 7 January 2003 concluded that M was in need of protection because of concerns about Y’s ability to meet the basic needs of any child. A Pre-birth Child Protection Conference took place on 28 February 2003. X and Y attended. They were insistent that they wanted the opportunity to prove that they could care for the unborn baby and that they were able to meet all his needs. They indicated that they were prepared to go to any lengths to secure this opportunity, including litigation up to and including the European Court of Human Rights. In his report dated 25 February 2003, the Deputy Team Manager, S, who at that stage was taking the lead as the keyworker, had recommended that M’s name should be placed on the Child Protection Register under the categories of neglect and sexual abuse. That recommendation was accepted, and M was registered under those two categories.

A Core Group meeting took place on 6 March 2003. Again, X and Y attended. The minutes contain the following important passage which needs to be read in full:

“[S] suggested a plan for discharge which would entail baby [M] and his parents going to a residential Assessment Centre … for 3 months immediately after discharge [from hospital]. The only problem would be if the baby was born early and we had to wait for a vacancy … In this event it was suggested that the baby would go to a foster home. This would only be for a matter of days and then only if the hospital needed to discharge him. There was also the question of funding which was not yet secured.

[X] and [Y] were in agreement with the plan for the residential assessment but were not happy for the baby to go into foster care. They agreed to talk it over at the weekend and give us their answer on Monday.

(However [X] phoned the next day to say that they agreed to the plan including the possibility of foster care which they hoped would be no longer than 7 days.)”

On 12 March 2003 the matter was considered by the local authority’s Children Panel. X and Y were neither present nor invited. I have not seen any minutes of the meeting, but according to a witness statement dated 10 April 2003 by K, a local authority Team Manager, the Panel decided, on the basis of the information from the Child Protection Conference, that a residential assessment was not appropriate at this stage. The Panel recommended a further psychiatric assessment of Y and indicated that care proceedings would be appropriate.

K discussed the matter with S and also had some telephone conversations with X which, he says, left him feeling “uneasy” about X’s commitment to following the proposed plan and about what he called X and Y’s “variable attitude in accepting the proposed plan”. X and Y for their part wrote to S on 24 March 2003, apologising for “the misunderstandings that have come to light” and stressing that “We ARE in agreement with the proposed residential assessment”. In fact by then, and having probably seen which way the wind was blowing, X and Y, acting in person, had lodged their application for judicial review with the Administrative Court.

At about the same time K decided that care proceedings would be the best option to protect M. He informed X and Y of his decision in a telephone conversation on 27 March 2003. K’s contemporaneous file note records him as having “underlined throughout the conversation that we are still committed to assessing them as a family”. K’s decision was formally conveyed to X and Y in a letter dated 7 April 2003 in which he confirmed that “it is the department’s intention to make an application for a court order that would enable us to determine where he should live after birth”. But, the letter continued, “please remember that it is our wish that a full assessment is made of all the circumstances. I sincerely hope that this assessment does turn out to be positive as we do have a commitment for children to live with their birth parents where this is possible and safe. I would urge you to do your best to work positively with all those involved to allow baby [M] the best opportunity to live with you.”

So much for the general circumstances in which the present application comes before the court. I need add only this. It is apparent that there are difficulties in the working relationship between the local authority and X and Y, though no doubt they have different views as to why this should be so. Those differences have already led to proceedings which X and Y commenced against the local authority in the County Court in December 2002. Their ex parte application for relief against the local authority was refused on 30 December 2002. They agreed to the dismissal of the proceedings on 3 February 2003. Since then they have taken their case to the media. They approached a local newspaper, ‘The Citizen – The Voice of Gloucestershire’. It has published stories in its issues dated 10 January 2003, 4 February 2003, 25 February 2003 and 24 March 2003, the last referring to the judicial review proceedings: “They have served notice at the Royal Courts of Justice in London to revive their claim under the Human Rights Act to look after the baby once it is born on April 16. They claim the social services department has reneged on an agreement made just before a county court hearing back in February.” The newspaper publicity prompted the local authority to apply to the High Court for injunctive relief in J’s care proceedings. On 28 March 2003 Judge Darwall Smith made an order in those proceedings prohibiting X and Y from “disclosing the papers in this case” – that is, J’s case – “or any information in this case” – J’s case – “to any other person … by any means whatsoever whether verbal, written or electronically”.

The judicial review proceedings sought to challenge what was described as the taking of M into care on an emergency basis. The relief sought included what was called a “review” of the compatibility of the Children Act 1989 with the Human Rights Act 1998. More specifically, X and Y sought an injunction restraining the local authority “from taking any action that would violate ours or our unborn child’s human rights, mainly Article 8, and to prevent the defendant from taking any action that would result in our unborn child being removed from our care”. In short, what was being sought in the first instance was an injunction restraining the local authority commencing emergency protection or care proceedings in the Family Proceedings Court.

The application for judicial review was supported by a number of documents: a Statement of Claim and Addendum to Statement of Claim, in which X and Y set out the grounds of their application, a Statement of Facts and Addendum to Statement of Facts by X, and a Statement of Facts and Addendum to Statement of Facts by Y. I have read all those documents very carefully. I need not deal with them in any detail. Essentially the claim was put forward on two grounds: first, that there was no proper basis for saying that M should be taken into care, let alone be removed from his parents at birth; and, secondly, that X and Y had not been treated fairly by the local authority, especially in the light of the seeming change in the local authority’s plans between 6 March 2003 and 27 March 2003. The local authority had been unjust and unfair.

It was apparent that X had done a lot of research into the Human Rights Act 1998 and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Statement of Claim alleged violations of Articles 3, 5(1), 8(1), 11(1) and 14 of the Convention and claimed relief under Article 13. It was said that the local authority had treated X and Y in a degrading manner (Article 3), that the proposed residential assessment would be depriving them and M of their liberty (Article 5(1)), that X and Y have the right to have and to raise children and that M has a right to remain with his parents (Article 8), that they have a right to associate with whom they choose and that M has a right to associate with his parents (Article 11(1)) and that the local authority had persistently discriminated against them, on the grounds of X being a Schedule 1 offender and Y’s previous association with Schedule 1 offenders (Article 14). Not surprisingly, they drew attention to the decision of the European Court of Human Rights in P, C and S v United Kingdom [2002] 2 FLR 631. In that case the Court emphasised at paras [116], [131], [133], that the removal of a child from his mother at or shortly after birth is a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons” under Article 8.

The Administrative Court Office was understandably unsure as to whether this was a proper case for judicial review and whether the matter might not more appropriately be dealt with in the Family Division. Accordingly the papers were placed before me, as one of the nominated judges of the Administrative Court who is also a judge of the Family Division, for me to give directions. That was on 8 April 2003. Having considered the papers I decided that the matter should remain in the Administrative Court and that there should be, as X and Y had sought, an urgent hearing of their application.

Accordingly on the morning of 9 April 2003 I made an order in the following terms:

“1

This application is to be issued in and is to remain in the Administrative Court but is to be reserved to a nominated judge who is also a judge of the Family Division (Munby J if available).

2

The claimants’ applications for permission and urgent interim relief are to be listed for oral hearing before Munby J on Friday 11 April 2003 marked not before 11.30am.

3

Whether or not the defendant files an acknowledgement of service or any evidence the defendant should file with the court no later than 10am on Friday 11 April 2003 (by fax to [number] addressed to the Clerk to Munby J) a brief position statement indicating (i) whether or not its care plan remains that decided at the Core Group on 6 March 2003, (ii) if not, why not, (iii) whether a place is available at the Assessment Centre … and if so from what date, and (iv) whether or not it is its intention either to apply for an emergency protection order or to commence care proceedings (and, if so, when and to which court).

4

The Administrative Court Office is immediately to notify both the claimants and the defendant of the terms of this order (in the case of the claimants by telephone and e-mail and in the case of the defendant by telephone and fax).

5

Liberty to either the claimants or the defendant to apply to Munby J (by fax to [number] or by telephone to [number]) to vary or discharge this order.”

On 10 April 2003 I received a letter from the local authority inviting me to discharge my earlier order on the ground that this was not a proper matter for judicial review, the parents’ correct remedy being to defend any emergency protection or care proceedings that the local authority might commence in the Family Proceedings Court. I indicated (in a letter sent to the local authority by my Clerk) that, having carefully considered the local authority’s application, I was not prepared to discharge the earlier order and that the hearing on the following day would go ahead. I said that, whilst I appreciated the very short notice, I did nonetheless expect the local authority to comply with paragraph 3 of my previous order. Later the same day (10 April 2003) I received the witness statement by K to which I have already referred, in which the local authority’s position was set out.

The hearing took place the following morning (11 April 2003). X and Y appeared in person. They had prepared a further Statement to the Court, which I read. They also addressed me orally, Y very briefly, X at greater length. I should make clear that they behaved throughout in an entirely appropriate, sensible, courteous and reasonable manner. X’s submissions were moderate and restrained. He had clearly thought carefully about their case. He put forward his arguments with clarity and with none of that obsessive inability to see the wood for the trees which is, on occasion, the mark of the litigant in person. The local authority was represented by Miss Claire Rowsell, for whose assistance also I am grateful.

There were, in substance, three applications before me:

By the end of the hearing Miss Rowsell was able to tell me, on instructions, that the local authority’s plan was to commence proceedings as soon as M was born. If the parents co-operated the application would be for an interim care order, otherwise for an emergency protection order. Subject of course to anything the children’s guardian might say, M would be placed with foster carers. X and Y would have contact at least five days a week. There would be a short preliminary non-residential assessment, followed by a residential assessment at the Assessment Centre previously identified, where it was hoped a place would be available for the parents and M in late May or early June. That assessment could then proceed in tandem with (rather than, as previously indicated, only after the satisfactory completion of) any psychiatric or psychological assessment of Y.

I suggested, and Miss Rowsell agreed, that there was merit in the same court dealing with the proceedings in relation to both J and M. She agreed that, since J’s proceedings had now been transferred to the High Court, it would be sensible for M’s proceedings also to be transferred as soon as possible from the Family Proceedings Court to the High Court. I suggested that if X and Y were prepared to co-operate with the local authority, and if the hospital was able to assist by extending the period Y and M stayed in hospital before being discharged, it might be possible to have the case transferred up to the High Court before any order had to be made. I was glad to note that the local authority seemed receptive to this idea.

Miss Rowsell confirmed that funding was not an issue.

After consulting with Y, X told me they thought this plan would be acceptable. Thus, by the end of the hearing there seemed to have been some meeting of minds.

At the end of the hearing (this was on Friday afternoon) I told X and Y that I was not prepared to grant them any interim relief. Nor was I prepared to give them permission to apply for judicial review. I told them I was dismissing the proceedings and said that I would give my reasons in writing on Monday (14 April 2003). This I now do.

I propose to take this quite shortly. I express no view on the merits or demerits of the case that the local authority proposes to make in the Family Proceedings Court or, after the case has been transferred, in the Family Division. That is a matter for others. The Family Proceedings Court and the Family Division will be able to investigate and evaluate the merits of the local authority’s case in detail. The role of the Administrative Court hearing an application for judicial review is much narrower. In the Administrative Court the focus of the court’s investigation – I put the matter generally – is not with the merits of the local authority’s case but rather with the much more limited question of the legality of the local authority’s decision-making process, leading up and embracing its decision to apply for an emergency protection or interim care order. There are only fairly limited grounds on which the Administrative Court can intervene. In my judgment it is quite clear that none of those grounds exist here.

Given the background to this case as I have sketched it out, it is quite impossible to argue that the local authority does not have grounds that at least justify it making an application to the Family Proceedings Court. The application may succeed. It may not. But it is, in my judgment, quite impossible to argue that the local authority would be acting unlawfully, unreasonably, unfairly or in breach of anyone’s human rights in making such an application. On that ground alone this application for judicial review must fail. Despite everything they have said, and despite everything they have put before me, X and Y have failed to establish any even arguable case for relief by way of judicial review. Nor have they shown a remotely arguable case that the Children Act 1989 is in any material respect incompatible with the Convention.

On the facts of the particular case, this application for judicial review must therefore inevitably fail. So I dismiss the application for permission and, with it, the application for interim relief.

But there is another and more fundamental reason why, in my judgment, this application is misconceived and must be dismissed.

The point is put very clearly by the local authority and by Miss Rowsell on its behalf. It says that it has ongoing duties in respect of child protection. It should not be barred from making an application under Part IV or Part V of the Children Act 1989 where it considers it necessary in order to safeguard a child’s welfare. The parents’ correct remedy if the local authority commences either emergency protection or care proceedings is through the court of application (the Family Proceedings Court or, if the case is transferred up, the County Court or the Family Division) and by defending the proceedings commenced by the local authority. I wholeheartedly agree.

The court has recently had occasion to consider analogous situations where inappropriate attempts have been made to invoke the jurisdiction of the High Court – either the Administrative Court or the Family Division – in circumstances where it has been held that the appropriate forum is the Family Proceedings Court.

In Re C (Adoption: Religious Observance) [2002] 1 FLR 1119, Wilson J made it clear that where care proceedings are actually on foot an application for judicial review is normally a wholly inappropriate method of challenging the local authority’s decision-making in relation to the child. Such issues can and should be resolved within the context of the care proceedings and by the court – whether the Family Proceedings Court, the County Court or the High Court – which is dealing with the care proceedings.

Following that approach, I made it clear in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam) that exactly the same principle applies in the case of applications under the Human Rights Act 1998. I indicated that complaints arising before the making of a final care order to the effect that the local authority’s proposals infringed the rights of the child or others under the 1998 Act can, and normally should, be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings. Only in a “wholly exceptional case”, I said, would it ever be appropriate to make a separate or free-standing Human Rights Act application in such a case.

I summarised the position as follows (para [36]):

“Just as applications for judicial review are to be deprecated where there are pending care proceedings, so are separate applications under sections 7 and 8 of the 1998 Act in such cases. The proper forum for litigating these issues will almost always be the court – whether the FPC, the County Court or the High Court, as the case may be – where the care proceedings are being tried.”

True it is that neither of those decisions applies in terms in the present situation, where the emergency protection or care proceedings are not yet on foot and where, indeed, the whole purpose of the application is, as I have said, to prevent the institution of such proceedings. But in my judgment precisely the same approach is called for.

Save in a wholly exceptional case it is, in my judgment, simply not appropriate to bring judicial review proceedings where the object of the proceedings is, as here, to prevent a local authority commencing emergency protection or care proceedings.

There are, as it seems to me, at least four reasons why, in a case such as this, judicial review proceedings are not merely inappropriate but highly undesirable.

First, it is elementary that judicial review is a remedy of last resort and that it should not be used where there is available another equally effective and convenient remedy. Illuminating analyses of the many well-known authorities on this point, specifically in the context of issues arising under the Children Act 1989, are to be found in the judgments of Ward J (as he then was) in R v Royal Borough of Kingston-upon-Thames ex p T [1994] 1 FLR 798 and Scott Baker J (as he then was) in R v East Sussex County Council ex p W [1998] 2 FLR 1082. The available and appropriate remedy here is that afforded by the parents’ ability to defend the emergency protection or care proceedings as and when they are commenced in the Family Proceedings Court.

Secondly, and as has been said repeatedly by a succession of Family Division judges, judicial review is a singularly blunt and unsatisfactory tool when the matters in issue are as sensitive and difficult as they inevitably are in care and similar types of cases. As I recently said in Re L at para [14]: “Judicial review is not merely a remedy of last resort: in this type of case it is apt to be a blunt, and for that very reason an unsatisfactory, tool.” Many judges have said much the same thing. A very partial anthology can be found in A v A Health Authority [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [71]-[79]. Ward J made precisely the same point in ex p T at p 814F. So did Scott Baker J (a judge with vast experience of sitting both in the Family Division and in what is now the Administrative Court) in R v Portsmouth Hospitals NHS Trust ex p Glass (1999) 50 BMLR 269 at pp 273, 277: “Contested factual evidence is usually an unsatisfactory basis for a judicial review application … judicial review is too blunt a tool for the sensitive and ongoing problems of the type thrown up in the present case.” And more recently Wilson J (another judge with great experience of sitting both in the Family Division and the Administrative Court) made the same point in Re C at para [51]:

“… the guardian's issue of proceedings for judicial review of the local authority's decision to match C with Mr and Mrs A was, in retrospect, misguided. Even had the proceedings been well-founded in law, the proper forum was to challenge the care plan in the care proceedings. There the full merits – as opposed to the bare lawfulness – of the decision fell for debate … I hope that no court is again required so painstakingly to consider the lawfulness of a decision when the real issue is as to whether it best serves the child’s interests.”

Thirdly, the greatest possible caution is, I think, called for where the purpose of judicial review proceedings is to restrain the commencement of what are, ex facie, proper proceedings in a domestic court which has jurisdiction in the matter – as the Family Proceedings Court obviously has in the present type of case. Although the common injunction was abolished by the Judicature Act 1873, the Administrative Court undoubtedly has jurisdiction in appropriate circumstances to restrain the commencement of proceedings, in the same way as the Chancery Division, for instance, has power to restrain the presentation to the Companies Court of a petition to wind up a company: see the discussion in de Smith, Woolf and Jowell, Judicial Review of Administrative Action (ed 5), paras 17-048 – 17-051. But, putting the matter generally, I find it hard to conceive of any case where it would be proper to exercise that jurisdiction unless it can be demonstrated either

Finally, it is vital that the Family Proceedings Court should be protected from the very real embarrassment it is likely to feel if told, just as it is about to embark upon the hearing of an urgent application for an emergency protection order or interim care order, that judicial review proceedings are pending in the Administrative Court which seek to restrain the bringing of the proceedings by the local authority. The removal of a child from his mother at or very shortly after birth is, as recently emphasised in P, C and S, a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons” under Article 8. But as the Strasbourg Court itself recognised, and as, unhappily, we know all too well, there are cases where the need for such highly intrusive emergency intervention is imperatively demanded in the interests of the baby. It would be intolerable if a baby urgently requiring the protection of the Family Proceedings Court should be denied that protection, and exposed to the risk of serious or even catastrophic damage, because the Family Proceedings Court felt inhibited from acting in a manner which it might be forgiven for feeling could be seen as impermissibly impinging on proceedings for judicial review pending in the Administrative Court.

I indicated above my very firm view that judicial review proceedings of the type which have been commenced here can only ever be appropriate, if at all, in wholly exceptional circumstances. By definition, exceptional circumstances defy definition. Indeed, I have difficulty envisaging any situation in which it could be appropriate to make the kind of application that was made in this case. But it would at the very least, I think, be necessary to demonstrate, and to demonstrate very clearly indeed, that it would be vexatious or an abuse of the process of the court for the local authority to commence the threatened emergency protection or care proceedings. Be that as it may, there is plainly nothing remotely out of the ordinary to justify recourse to the Administrative Court in the circumstances of the present case.

To avoid delay, in a situation where, as I have indicated, any delay may be extremely damaging to a child who may be urgently in need of the court’s protection, I would recommend that the following procedure should be adopted in any future case where a similar application is received by the Administrative Court:

That said, I emphasise that applications for judicial review are to be deprecated in this kind of case. I hope that in future proper heed will be paid to the views which on this point have been so consistently expressed and for so long by so many judges.

It will be for the Family Proceedings Court (or, if the case is transferred up, the Family Division) to hear and determine whatever application the local authority may decide to make. It is for that court, not for me, to decide M’s future. There are, however, a number of things I can properly say in the circumstances and think I ought to say: