ADMINISTRATIVE LAW AND THE FAMILY COURTS

Public bodies and applications in the family court

The case of Re X (A Child) [2014] EWHC 2522 (Admin) (considered also in http://suesspiciousminds.com/2014/07/23/serious-case-review-versus-judicial-review-a-cough-review/ under the heading: Serious case review against judicial review: a review) prompts the question: why cannot the family court hear all issues with administrative law aspects or other the intervention of public bodies. It hears such application daily in care proceedings where a public authority (as eg defined by Human Rights Act 1998 s 6(2)) is invariably the applicant. Public bodies are parties – whether as applicant or intervener – in a variety of family proceedings, such as:

• In Revenue and Customs v Charman [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119 HMRC unsuccessfully sought a husband’s family proceedings documents in connection with a tax tribunal appeal
• In A Local Authority v Mother, Father and X and Y [2014] EWHC 278 (Fam), Baker J ordered that documents sought to be disclosed to the police, should be disclosed
• By an ‘originating summons’ procedure in CM v Exor of the Estate of EJ (deceased) and HM Coroner for the Southern District of London [2013] EWHC 1680 (Fam) the High Court ordered a specimen to be produced to the applicant for testing for communicable diseases
• The CPS in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550 succeeded in preventing disclosure of information in financial remedy proceedings to Mrs Gohil
• In Giltinane v Child Support Agency [2006] EWHC 423 (Fam), [2006] 2 FLR 857, Munby J deliberately allowed an appeal out of time in judicial review where statute prevented such a course.

All of these cases started as family proceedings under Family Procedure Rules 2010 (‘FPR 1991’), where remedies are provided either interim to existing proceedings (FPR 2010 Part 18); or on a free-standing – ‘originating summons’ – basis under FPR 2010 Part 19.

The father (F) in Re X (above) was not to prove so fortunate in his application; but before considering his position it is perhaps worth bearing in mind the maxim: Ubi remedium ibi lex. That is to say, it is an object of English law that, where there is a legal problem to be resolved or a civil right to be defined then the law will find a means of doing so. The family court is not intended to be any exception to this; and Matrimonial and Family Proceedings Act 1984 s 31E(1) (powers of the new family court) provides that family ‘court may make any order (a) which could be made by the High Court if the proceedings were in the High Court, or (b) which could be made by the county court if the proceedings were in the county court’.

Re X: the case – Working Together

In Re X a boy (aged 13 in 2014) had been subject to care proceedings and had been stabbed by his mother. A care order was made on 17 January 2012. The Local Safeguarding Children Board (LSCB) undertook a serious case review (SCR), which was completed in 2011; and, as required, the LSCB produced an overview report and executive summary. The guidance to publication of these reports had been in Ch 8 of Working Together to Safeguard Children (March 2010: now superseded by a March 2013 version; though this seems not to have been noted by the judge). The 2010 version of Working Together required only that the executive summary of the report be published unless (as changed by a ‘ministerial letter dated 10 June 2010’) for ‘compelling reasons relating to the welfare of any children directly concerned in the case’ the LSCB thought this should not be permitted.

In Re X (paras 6 and 7) the LSCB decided that they would only allow the ‘overview report’ and ‘executive summary’ to be seen by the court; and X’s father (F) was only allowed to see the report in court or at the local authority’s offices. He applied to the court to have the report released to him

LSCBs and the local authority

The LSCB is set up by ‘the local authority’ (Children Act 2004 (‘CA 2004’) s 13(1)), which is the same body as takes care proceedings (see eg Children Act 1989 s 31(1): care order application). However, Sir James held that the LSCB was a public body which is ‘juridically distinct from and wholly independent of the local authority’. The application was in respect of LSCB and not part of the care proceedings. Secondly, it was a ‘a free-standing application’ not in the inherent jurisdiction of the High Court eg for a reporting restriction order to restrain publication of a document (see eg Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500: a case also decided by Munby LJ but on the subject of restrictions on reporting of SCRs), and must therefore be made in the High Court by the procedure under CPR 1998 Part 54. The application, said the judge was ‘misconceived’.

That said – as can be seen from its title – the judge was willing to transfer the case to the Administrative Court (he treated the decision of the LSCB independent chair to disclose the summary to F of 19 September 2012 on only a limited basis as the decision under judicial review). He held the application to be out of time; but, time grounds apart, he held that F had not identified any ‘conventional grounds’ for review (para 20; see below).

European Convention 1950 rights and ‘anxious scrutiny’

In Re B (A Child) [2014] EWCA Civ 565 the Court of Appeal considered whether an appeal should be allowed where a judge appeared not fully to have considered the ‘welfare’ factors which a court must consider once it was decided that the CA 1989 s 31(2) threshold had been achieved. Of the duty on the decision-maker – the court in this case – Black LJ said:

[41] Re B (a child) [2013] UKSC 33, Re G (a child) [2013] EWCA Civ 965 and other decisions made during 2013, which was a particularly active year for family law, have made clear that the decision whether to make a care order (as also the decision whether to grant a placement order) involves not only an exercise of discretion but also a rigorous consideration of whether the order is necessary or, putting it another way, whether it would be incompatible with Art 8 ECHR (the second element sometimes being referred to as a “proportionality evaluation” or “proportionality test”).

This comments echoes a variety of case law, especially since the speech of Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 (at para 17) – from the Supreme Court downwards (and see Munby LJ himself in Re X and Y (above)) – which stresses that where Convention rights apply, the judge or public authority decision-maker has a discretion as to how such rights are applied. This involves him/her in an ‘anxious scrutiny’ of what are the Convention rights, of how they apply to the individual case and where interference is to be permitted (in the X case, F’s Art 10 and perhaps Art 6(1) rights). Finally the decision-maker, and the judge on judicial review, must assess whether any interference with Convention rights is proportionate to the issues involved in the particular case.

Sir James Munby P rejected F’s deemed judicial review application on time grounds; and also on grounds that he had not brought himself within ‘elementary grounds’.

[20] … It is elementary that judicial review lies only on certain well recognised grounds – for example, procedural unfairness, error of law, misapplication of the statutory scheme or irrationality.

Of the ‘anxious scrutiny’ of European Convention 1950 proportionality required of the Board and by him on judicial review, Sir James said only:

[23] … Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

He did not give F the opportunity to go away and plead his permission application more fully. He rejected there being errors of law and attempted no ‘anxious scrutiny’ beyond the above.

Errors of law

Representation in X was that the local authority solicitor instructed a QC for LSCB and a junior for the local authority respectively (it is not known if the local authority paid for both), and CAFCASS instructed a junior as advocate to the court. However, there is no evidence that Sir James’s attention was drawn to the following errors of law:

(1) Disclosure in care proceedings

The care order was made on 17 January 2012. The SCR was completed in ‘2011’ and the ‘executive summary’ was completed six months earlier. Insofar as this was available to the local authority it must have been subject to disclosure (ie though not necessarily production) in the care proceedings. Why was not production sought then (when, presumably, F had legal representation)? Either the local authority should have applied for, or the judge ordered, public interest immunity or its confidential status (if such it was) should have been claimed. If only limited production was to be available then principles such as those applicable on partial disclosure in Re M (A Minor)(Disclosure of Material) [1990] 2 FLR 36, HL should have been considered.

(2) ‘Local authority’

The judge found that the LSCB and the local authority are separate bodies for party status and judicial review purposes. This may be entirely correct; but it does require some examination in the light of ‘the local authority’ being both responsible for setting up LSCBs (CA 2004 s 13(1): ‘Each local authority… must establish a [LSCB] for their area’) and being also the party to the care proceedings – issued under CA 1989 s 32(1) – to which F was a party. The child who was the subject of the proceedings was also the subject of the report. Were two completely separate sets of proceedings appropriate for one child and the same or similar parties?

(3) ‘Functions’ of the LSCB

Sir James Munby P explained the back-ground to publication of SCRs as that regulations made under CA 2004 has

[3] … very little to say…: both the Children Act 2004 and the relevant regulations, The Local Safeguarding Children Boards Regulations 2006, SI 2006/90, are silent on the point. It is dealt with in the statutory guidance issued pursuant to section 16(2) of the 2004 Act.

Of that ‘statutory guidance’ he referred to Working Together to Safeguard Children (March 2010), paras 8.44 and 8.50 and to further June 2010 ministerial guidance; but his attention does not seem to have been drawn to the fact that by the time F made his application (May 2014) a March 2013 version of Working Together had been published (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281368/Working_together_to_safeguard_children.pdf); and this specifically refers to publicity for reports, albeit in an oblique way (Chapter 4):

[15] From 2013 there will be a national panel of independent experts to advise LSCBs about the initiation and publication of SCRs. The role of the panel will be to support LSCBs in ensuring that appropriate action is taken to learn from serious incidents in all cases where the statutory SCR criteria are met and to ensure that those lessons are shared through publication of final SCR reports….

As the President says, CA 2004 s 16(2) requires:

… the local authority and each of their Board partners must, in exercising their functions relating to a [LSCB to] have regard to any guidance given to them for the purpose by the Secretary of State.

H treats Working Together as being guidance under s 16(2). The above para 15 is not conclusive on publication, but its meaning and effect on F’s case should surely have been considered by the High Court?

(4) Human rights issues: ‘anxious scrutiny’

As already explained, European Convention 1950 issues were not explicitly considered either by the LSCB or by the court; and this in itself might be thought an error of law justifying at least the grant of leave and an opportunity to F more fully to plead his application for judicial review.

Legal implications of a decision in the family court

Instead of as an application for judicial review, this case could have been treated as an application under FPR 2010 Part 19 (as a free-standing basis) or as an application interim to the care proceedings (FPR 2010 Part 18); but in any event the full legal implications of what had happened under the modern law could perhaps have been permitted to the applicant father. However, there seems to be no logical reason why such applications – against the same local authority who made the care application; but certainly involving the same subject child – should not be made in the family proceedings in which the original children issue arose.

All this is not to say that the President should necessarily have allowed a review of the LSCB decision-making – the issue which was before him. It does suggest that there may have been more errors of law – disclosure, a definition of ‘local authority’, and the functions of, and guidance to, LSCBs – antecedent to the LSCB decision which he was being asked judicially to review. Both the LSCB and the judge himself should perhaps have given fuller thought to the European Convention 1950 rights engaged by the father’s request and later court application before their decision was made.

David Burrows
28 July 2014

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One thought on “ADMINISTRATIVE LAW AND THE FAMILY COURTS

  1. Reblogged this on | truthaholics and commented:
    Dysfunctional, self-serving -vs- fit-for-purpose.
    “Ubi remedium ibi lex. That is to say, it is an object of English law that, where there is a legal problem to be resolved or a civil right to be defined then the law will find a means of doing so.”

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