Judicial review and the ‘political arena’
In R (Wilson & ors) v The Prime Minister  EWCA Civ 304 (4 March 2019) Hickinbottom Cave LJ recently commented of anti-Brexit campaigners and their failed attempt to appeal against a judicial review application, that the courts cannot be ‘concerned at all with the merits of leaving or remaining in the EU’. In R (Webster) v Secretary of State for Exiting the European Union  EWHC 1543 (Admin), the court noted that Parliament had given the Prime Minister the power to give notification of withdrawal and a discretion as to when to do so. Any claim in relation to it ‘must be focused exclusively on the question of whether the Respondent has acted in accordance with the law’. The courts, said the Court of Appeal, were not concerned at all with the merits of leaving or remaining in the EU.
OK, but when does a judicial review application cease to be political so the court – on Wilson lines – will find it a matter of law and not of politics? That is a massive question, and depends on an appropriate definition of ‘politics’. For now this post is limited to the politics of children’s rights and their application in administrative law.
An inescapable fact is that judicial review is designed to challenge the government In the field of rights law that is obvious; and children’s right is no exception. A challenge on procedural ground may have little by way of politics to it; but as soon as you start to say a decision-maker on behalf of a government minister has acted unlawfully (see eg references to Courts Act 2003 s 75(5) later) or that a decision-maker is behaving unreasonably, then you are straying into politics. The closer the government minister is personally to the decision – one thinks immediately of the Home Secretary and Shamina Begum’s late child – the more the judicial review application becomes political.
I well remember a child support judicial review where a permission application was adjourned before Collins J. The case involved a non-resident parent (a father), Peter, who was overwhelmed by child support paperwork and whose second wife (Doreen) used to try to organise it. One day they were sitting at breakfast. Doreen opened a letter which told the reader – her – that Peter had recently fathered another child by another woman. It turned out the Child Support Agency had made this up; or muddled up two families.
The point at which I met them both Peter and Doreen were patching up the relationship which remained damaged after that Child Support Agency intervention; though there were other Child Support Act 1991 issues to resolve. The newspapers were interested in what had happened and the couple were invited to appear on television.
‘Go on get political’: Mr Justice Collins
Remarkably the only way to challenge figures given as arrears by the then Child Support Agency (now rebranded Child Maintenance Service) was – and still is, as far as I know – by judicial review (ie there is no appeals process which deals with arrears). Hence my appearance a few weeks later before Collins J. Something he asked me required me, I said apologetically, to get ‘political’. His reply? ‘Go on, do get political, Mr Burrows’….
He was no fan of the child support scheme. Of Child Support Act 1991 s 20(7)(a) (First-tier Tribunal appeals and factors the tribunal ‘need not consider’) he commented (in R (Starling) v Child Support Commissioners  EWHC 1319 (Admin) (unreported)) that s 20(7) was ‘the most ill-drafted and obscure provision in the field of child support’ (at ).
Politics and judicial review
Personally, I cannot refer to subjects much wider than family law; though as the list below shows the palette is quite extensive. In terms of the family courts’ time and its resources substantial parts of the family lawyer’s work is concentrated in dealing with children law. Children law, by definition, has a variety of public (in the sense of administrative) law elements. These include:
- Rights of children to be heard; which, where need be, may have to be enforced by judicial review since the rights extend to administrative decisions in relation to a competent child.
- Legal aid (obviously and almost invariably); but how often is it granted for the less mainstream cases where people may really need the skills of a rights lawyer?
- Court administration (especially equipment for vulnerable witnesses and court delays).
- Appointment of Cafcass officers (this is often done unlawfully to the detriment of child’s rights; but family lawyers take no notice (and see Criminal Justice and Court Services Act 2000 s 12)).
- Immigration and nationality (see eg Shamina Begum’s dead child: is that political?).
- Housing (see recently R (JA and ors) v The London Borough of Bexley  EWHC 130 (Admin) (1 February 2019), David Casement QC as a High Court judge).
- Education and social services: secure accommodation and deprivation of liberty.
- Local authority’s, care proceedings and Human Rights Act 1998 damages claims.
- Adoption: the working of adoptions panels.
Child representation rules: ‘simple and simply expressed’; or truly ‘complex’?
One of the more glaring examples of family lawyers ignoring rights, is in relation to the rules under which we all practice. Start with the law which defines the powers (vires) of the Family Procedure Rules Committee which make the rules (Family Procedure Rules 2010) which govern how family proceedings are to work, namely Courts Act 2003 ss 75 and 76. It is enough just to look at s 75(5) to see how unlawful (ie wrong, illegal) many of these rules are. Section 75(5) says, beguilingly:
(5)Any power [which the rules committee has] to make Family Procedure Rules is to be exercised with a view to securing that—
(a)the family justice system is accessible, fair and efficient, and
(b)the rules are both simple and simply expressed.
Anyone – adult, child or local authority – who goes to court in relation to family breakdown, care or adoption proceedings needs to work within the parts of these rules which apply to a case; and for present purposes surely a child must know whether the child has a case at all? Logically, and in law, the rules should be ‘simple’, especially those which relate to representation of children in proceedings (ie FPR 2010 Part 16).
In fact the rules are written for lawyers in a style which was fashionable 25 years ago. The idea of children having ‘views’ which they might be entitled to express in proceedings which affected them was – then – a very new idea (as Children Act 1989 came in; and see eg Re CT (A Minor) (Wardship: Representation)  2 FLR 278,  Fam 49,  3 WLR 602, CA). The concepts the rules try to deal with – intertwining private law case and care proceedings – are truly a muddle. Experienced judges find them ‘very confusing’ (to quote a 20+ year appointed family judge).
But imagine you are thirteen year old (say), or a little older, who has been with foster parents in care. You want to go back to live with your parents. How do you do this? What rules do you follow? Is there anyone who will help you? These questions are real. It comes from a case in the Court of Appeal from not so long ago, a case called Re W (A Child) (Care Proceedings: Child’s Representation)  EWCA Civ 1051,  1 WLR 1027.
Fiona (not her real name) was sixteen. She was living with foster parents but she wanted to go home. The social workers did not agree with her. Eventually her case got to the Court of Appeal where Lady Justice Black (now Lady Black in the Supreme Court) called the rules which someone like Fiona has to negotiate are of ‘complexity’. Complex they were for a 30+ year experienced highly intelligent children lawyer. So what chance a non-lawyer; or a bright but not trained 14 year old?
Oh and even then, by the way, I think Black LJ and the lawyers in court with her all got the law muddled up, if you read her judgment. There was no requirement – in law – for the court to appoint a Cafcass officer in the first place: the recovery order to which Fiona was subject was not ‘specified proceedings’ which would have demanded a children’s guardian (ie Cafcass officer). And it was that appointment – because the Cafcass officer wanted to go in an opposite direction to Fiona, and (unlawfully) Fiona’s solicitor would not represent her – which lead to the appeal case. Fiona, following the appeal, was permitted after all that, to have her own lawyer.
Child rights: political or not? A challenge to rule-makers…
If experienced judges find the rules ‘very confusing’ or complex, by definition they are not ‘simple’. A lawyer for a child – ‘political’ or not – could with a little effort say to the Administrative Court that the rules in Part 16 are illegal. A High Court judge could be asked to send them back to the Rules Committee to make them simple. I would say that would include redrafting them in a form which the people for whom they are designed – children of say 13/14+ – can understand: is that a political point?
Certainly Part 16 must be untangled so that all of us, especially family judges, can have a fair crack at understanding what Part 16 says.