Child rights: politics or law

Judicial review and the ‘political arena’

 

In R (Wilson & ors) v The Prime Minister [2019] 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 [2018] 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 [2008] EWHC 1319 (Admin) (unreported)) that s 20(7) was ‘the most ill-drafted and obscure provision in the field of child support’ (at [36]).

 

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 [2019] 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) [1993] 2 FLR 278, [1994] Fam 49, [1993] 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) [2016] EWCA Civ 1051, [2017] 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.

SEXUAL RISK ORDERS AND THE INHERENT JURISICTION IN CHILDREN PROCEEDINGS

Hayden J: another view on child sex exploitation

London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam), Hayden J (judgment on 21 July 2015) is important for at least three reasons:

• Hayden J defines the inherent jurisdiction of the High Court when it comes to a judge’s power to restrain alleged sexual abuse by one or more individuals against a child; and in so doing
• He reviews the role of local authority in obtaining child sexual exploitation orders and the earlier Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014) of Keehan J.
• The existence and scope of sexual risk orders under Sexual Offences Act 2003 s 122A (in force since the Birmingham case) was confirmed.

In December 2014 in Birmingham CC v Riaz (above) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl. He held that he could make the order in his inherent jurisdiction on an application by AB’s local authority relating to the child sexual exploitation (‘CSE’) inflicted on her. He recognised that the step taken by him was radical. His order is set out in full in Redbridge v SNA (at §[3]) and formed the basis of the Borough’s application to Hayden J.

Keehan J’s order had included the following: that the male defendants may not:

1. e) Approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station…
2. i) Cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

SNA’s advocate criticised this formulation (§§[16]-[18]): the orders are not related to the child the subject of the application and are contrary to the philosophy of the children jurisdiction, she said. This jurisdiction relates to a particular child and, in the case of wardship, where the child issues cannot be resolved under Children Act 1989.

Background facts

The background facts were that care proceedings had been started by Redbridge in August 2014 in respect of SA, a girl aged 17, AA a girl of 14, AN and ZA (boys aged 10 and 6). SNA is the father of the boys and stepfather of the girls. In December 2014 HHJ Sapnara concluded a fact finding hearing and made findings against SNA: of systematic grooming of SA over a number of years from a very young age; use of violence and eventually rape per vagina and anus. He judgment included the following: ‘SNA is a highly manipulative abuser of a child’ (§§[21]-[22]).

SNA was referred to Dr Shaun Parsons (a consultant forensic psychologist) who concluded that SNA’s behaviour ‘is evidence of a deviant sexual interest and towards a sexual assault against pubescent and older pre-pubescent and adult females’ (§[23]).

Inherent jurisdiction of the High Court

The judge took time to reflect; and in particular to explain his own view of the High Court’s inherent jurisdiction. Earlier he had summarised Keehan J’s views on the jurisdiction, especially:

[5] [Keehan J] recognised that the use of the inherent jurisdiction has been very significantly curtailed by Children Act 1989 s 100 and that a local authority may not apply for any order under it without [leave. He] went on to consider what the modern scope and ambit of the inherent jurisdiction might extend to. He noted the observations of Waite LJ in Re M and N (Minors) [1990]:

‘… the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.’

Hayden J’s survey of the operation of the inherent jurisdiction in relation to children sees him balance its use in the Family Division in children proceedings against its use in judicial review. He starts:

[33] … The concept of the ‘inherent jurisdiction’ is by its nature elusive of definition. Certainly it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’. But it is not ‘ubiquitous’ in the sense that its reach is all- pervasive or unlimited.

But he then explains the need for the courts to exercise the jurisdiction ‘sparingly’ (which recalls another judgment of Waite LJ in Thomas v Thomas [1995] 2 FLR 668, CA: the discretion of a court in financial relief cases is in theory almost limitless, says Waite LJ; but (at 670): ‘For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that “it is excellent to have a giant’s strength but tyrannous to use it like a giant.”’) Hayden J says:

[33] … Precisely because its powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.

He then looks at a little of the jurisprudence of the Administrative Court in children matters, and in particular looks at its ‘interface’ with the family courts and Court of Protection:

[35] Not only is the scope of the inherent jurisdiction restricted but the interface between the Family Court or the Court of Protection and Public Authorities is subtle. Thus the High Court may try to persuade a Public Authority to act in a way which the court considers to be in the best interest of the child but it must not allow itself to be utilised to exert pressure on a public authority see: R v Secretary of State for Home Department ex p T [1995] 1 FLR 293 [Court of Appeal: Staughton and Hoffmann LJJ and Sir Roger Parker].

[36] The development of judicial review, as illustrated by ex parte T (supra), has also served to curtail the exercise of the powers of the inherent jurisdiction. No power be it statutory, common law or under the prerogative is, in principle, unreviewable. The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary.

He concludes, of the inherent jurisdiction in children proceedings, as follows. Firstly:

[36] … It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.

Secondly, he held:

[37] … that to extend the scope of the inherent jurisdiction to children who are neither known nor subject to any proceedings, is to go beyond the parameters of its reach. However well-intentioned the ambition to prevent child sexual exploitation generally, this is ultimately to make a utilitarian calculation of social policy. The framework within which such children should be safeguarded and protected is for Parliament to create and for the Courts to enforce.

And finally, he says,

[45] Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf [Redbridge is outside] the scope of this Court’s powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in the Birmingham case.

Sexual risk orders

All was not lost. Sexual risk orders under Sexual Offences Act 2003 s 122A are now available since the Birmingham case (as explained by Hayden J at §[46]); and this enables the police to take proceedings for an order, namely where:

(2) … the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

Proceedings were under way in the magistrates’ court against SNA. The Redbridge application was therefore dismissed, and in the end the judge decided he could not accept an undertaking from SNA pending the outcome of the s 122A application.

We now have two judicial views on the inherent jurisdiction. Both are from cerebral judges, who both deserve genuine respect. Applications for sexual risk orders may make render largely redundant a definition of the inherent jurisdiction in this children context. It remains a live subject. The views of these two judges in the inevitable further debate will be loud in any discussion.