Neutral Citation Number: [2003] EWHC 850 (Admin)
Case No:
CO/1814/2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of
Justice
Strand,
London, WC2A 2LL
Tuesday 15th April
2003
B e f o r e :
THE HONOURABLE MR JUSTICE MUNBY
____________________
Between:
In the matter of
unborn baby M R (on the application of X and Y)
Claimant
- and -
GLOUCESTERSHIRE
COUNTY COUNCIL
Defendant
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
X and Y (the parents) appeared in person
Miss Claire Rowsell (instructed by the local authority
solicitor) for the defendant (local authority)
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice Munby:
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.
The facts
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
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
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:
i) The claimants' application for permission to apply for
judicial review.
ii) The claimants' application for urgent interim relief to
prevent the local authority applying to the Family Proceedings Court. During
the hearing X clarified for me the relief they were seeking: an injunction to
prevent M being removed; alternatively, an order requiring the local authority
to set up a residential assessment as soon as possible.
iii) The defendant's application that the entire proceedings
be dismissed, essentially on the grounds that they were wholly lacking in any
even arguable merit and were in any event misconceived.
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.
Decision – the narrow ground
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.
Decision – the wider ground
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
i) that the relevant court or tribunal lacks the
jurisdiction to hear the proposed proceedings; or
ii) that the proceedings are vexatious or constitute an
abuse of the process of the court; or
iii) in a case where proceedings are already pending in one
court or tribunal and the application is to restrain the institution of further
proceedings in a different court or tribunal, that there is a real risk of
serious prejudice to the person seeking to restrain the further proceedings if
they are allowed to go ahead at the same time as the existing proceedings.
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:
i) The Administrative Court Office should upon receipt of
the papers immediately issue the proceedings and then immediately place the
file before a nominated judge of the Administrative Court who is also a judge
of the Family Division or, if no such judge is immediately available, before
the President of the Family Division.
ii) The judge before whom the file is placed should give
immediate directions, with a view, where appropriate, to the case being
'fast-tracked' and disposed of as quickly as possible. I have in mind, for
example, that, as in the present case, it may be appropriate – indeed vital –
to dispense both with the acknowledgement of service and with any preliminary
decision by the judge on the papers. Typically it will be appropriate – often
it will be necessary – to proceed immediately to an oral hearing at which the
judge (who should always be a nominated judge of the Administrative Court who
is also a judge of, or who has previous experience of sitting in, the Family
Division) can hear and determine both the claimant's application for permission
to apply for judicial review and any application for interim or other relief.
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.
Concluding thoughts
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:
i) The fact that I would in any event have dismissed this
application for judicial review on the merits does not, of course, mean that
the local authority will necessarily succeed in the Family Proceedings Court.
It may. It may not. The issue for the Family Proceedings Court (or the Family
Division) will be quite different from the issue that alone concerned the
Administrative Court.
ii) At the risk of unnecessary repetition I emphasise that
the removal of a child from his mother at or shortly after birth is a draconian
and extremely harsh measure which demands "extraordinarily
compelling" justification. The fullest possible information must be given
to the court. The evidence in support of the application for such an order must
be full, detailed, precise and compelling. Unparticularised generalities will
not suffice. The sources of hearsay evidence must be identified. Expressions of
opinion must be supported by detailed evidence and properly articulated
reasoning.
iii) Save in wholly exceptional cases parents must be given
adequate prior notice of the date, time and place of any application by a local
authority for either an emergency protection order or an interim care order.
They must also be given proper notice of the evidence the local authority is
relying upon.
iv) If a baby is to be removed from his mother one would
normally expect arrangements to be made by the local authority to facilitate
contact on a regular and generous basis. It is a dreadful thing to take a baby
away from his mother: dreadful for mother, dreadful for father and dreadful for
the baby. If the state, in the guise of a local authority, seeks to intervene
so drastically in a family's life – and at a time when, ex hypothesi, its case
against the parents has not yet even been established – then the very least the
state can do is to make generous arrangements for contact. And those
arrangements must be driven by the needs of the family, not stunted by lack of
resources. Typically, if this is what the parents want, one will be looking to
contact most days of the week and for lengthy periods. And local authorities
must be sensitive to the wishes of a mother who wants to breast-feed and must
make suitable arrangements to enable her to do so – and when I say breast-feed
I mean just that, I do not mean merely bottle-feeding expressed breast milk.
Nothing less will meet the imperative demands of the Convention. Contact two or
three times a week for a couple of hours a time is simply not enough if parents
reasonably want more.
v) I would expect the court in the present case to want to
probe (a) the reasons for the seeming change in the local authority's plans
between 6 March 2003 and 27 March 2003, (b) the precise details of the foster
placement proposed for M, (c) the details of the contact arrangements proposed
by the local authority and (d) the details, likely start dates and likely
duration of the various assessments which are planned.
vi) The court may also wish to consider whether the fact
that X is a Schedule 1 offender is, of itself, any justification for the view
that M is at risk of sexual abuse. I appreciate that I have only a
comparatively superficial knowledge of the facts of this case, and that there
is much known to the local authority of which I am wholly ignorant, but I have
to say that X's apparent predilection for under-age teenage girls does not of
itself suggest to me that his baby son is at risk of sexual abuse.
The court has made an order in this case restricting
disclosure, or reporting, of certain information in the case. Anyone to whom a
copy of this judgment is supplied, or who reads it in whatever circumstances,
is bound by that order, details of which may be obtained from the clerk of the
court. However, nothing in that order prevents the publication of the whole or
any part of this judgment in the form in which it is here published.
--------------------------------------------------------------------------------
BAILII: Copyright Policy | Disclaimers | Privacy Policy |
Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2003/850.html