N (Father of J) v The Director of Public Prosecutions (R. Prosecution Service)

The identities of the Claimant and his son have been anonymised because of J’s age.

This matter came before me on 12 May by way of a renewed application for permission to apply for judicial review following refusal on the papers by Wilkie J on 17 December 2010. On that day he refused interim relief also.

Prior to the hearing before me, I had received Skeleton Arguments prepared by Miss Rachel Langdale QC and Miss Gina Allwood on behalf of the Claimant and Mr Aaron Watkins on behalf of the Defendant. I heard oral submissions on both sides.

Because of the pressure on my list that day, I elected to take a little while to think about whether or not I should grant permission.

The application raises the difficult question of whether, and in what circumstances, the decision of the Crown Prosecution Service not to prosecute a parent for child abduction contrary to Section 1 of the Child Abduction Act 1984 may be the subject of judicial review.

There is little doubt that J’s mother has removed him from the jurisdiction and has done so in breach of the Act.

The general reluctance of the court to become involved in decisions concerning the discretion to prosecute is reflected in cases such as R v Commissioner of Police for the Metropolis Ex Parte Blackburn; R v DPP Ex Parte Blackburn; R v DPP Ex Parte C (1995) 1 Cr.App.R. 136; R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 and R v DPP Ex Parte Manning [2001] QB 330. However, the comments of the late Lord Bingham in Manning at paragraph 23 (albeit expressed in very different circumstances from those in the present case) do demonstrate that the threshold should not be set so high that a successful application can never be made.

Miss Langdale made some points about the decision letter of the CPS dated 1 December 2010 (which effectively represents the challenged decision) which at least raise a question about whether all relevant factors were taken into consideration and whether irrelevant factors were considered. The general relationship between the criminal jurisdiction in this area and the role of the Family Courts was something that figured in the letter and in her submissions.

Having looked at the papers again after the hearing, I noted that, understandably, the Claimant’s advisers had hoped that the application would be listed before a judge with experience both of the Administrative Court and of the Family Division. I cannot, I fear, claim any recent experience of the latter. It does seem to me that the issues that arise in this particular area are issues that are worthy of consideration by a judge experienced in both jurisdictions: there may be particular issues concerning the interests of children that ought to be considered in the context of potential prosecutions under the Child Abduction Act that are different from other criminal offences – those issues might tell in favour of prosecuting or they may tell against.

Having enquired, I understand that Holman J is sitting in the Administrative Court between 11 and 29 July this year. Since the urgency of the matter from the Claimant’s point of view has inevitably subsided with the passage of time, I think that waiting until Holman J is available to consider the application for permission, and then the substantive application if permission is granted, is justified.

Accordingly, I will direct that the application is listed on a “rolled up” basis (1 day allowed) before Holman J in the period 11 July – 29 July.

I am sure that Counsel can agree on any necessary directions for the hearing, but in the event that they cannot, I will direct that any disputed matter be referred to Holman J by 4pm on Monday, 13 June, to be dealt with by him on the papers. As a minimum, I am sure he will want one properly paginated bundle containing all relevant evidential and documentary material and a bundle of authorities. It may be sensible, even if it amounts to little more than a reprinting of the current Skeleton Arguments, for fresh Skeleton Arguments to be lodged by no later than 4pm on 4 July.

I will give permission to the charity, Reunite International, to intervene in the proceedings to make written representations, if so advised. If they wish to appear at the hearing, any application for that purpose must be referred to Holman J.

I am grateful to Counsel for their assistance. I shall be grateful if Miss Allwood and Mr Watkins could agree a form of order that gives effect to this decision.