G, R (on the application of) v Blackpool Borough Council [2011] EWHC 1052 (Admin)

Case No CO/8088/2010

[2011] EWHC 1052 (Admin)

IN THE HIGH COURT OF JUSTICE LANGSTAFF

Venue MANCHESTER CIVIL JUSTICE CENTRE, Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

M3 3FX

Date Tuesday 15th March 2011

Before

MR JUSTICE LANGSTAFF

Between

The Queen on the application of GClaimant

Blackpool Borough CouncilDefendant

(DAR Transcript of

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The Claimant appeared in person. for in person

for The Defendant did not appear and was not represented.

Judgment

[1]On the 27th July 2010 Mr G and Mrs G, his wife, issued an application to proceed by way of judicial review. This is a renewed application for permission to pursue those proceedings, permission having been refused on the papers by HHJ Rayner QC. He did so on a mixture of grounds in respect of time in particular, and also in respect of the merits of those claims which appear to be within time. He did that on 14 January 2011. The first reason was expressed in these terms:

"...matters complained of save in regard to the claimants' most recently born child and police bail occurred more, and generally substantially more, than three months before the issue of this claim, and accordingly the claims as regard such matters are out of time. For that reason alone I would refuse permission."

[2]The application for renewal should have been made, according to the rule, within seven days. It was not made until 10 February 2011. However, there is a lengthy history to the case which I need to set out so that anyone who reads this judgment hereafter can understand the background to it and why it is that Mr G feels he has been shunted from pillar to post in attempting to pursue a remedy for an injustice which he considers was done to him by a local authority, Blackpool, and by the Lancashire Constabulary and, it may be, the Secretary of State for the Home Department, particularly in respect of orders made which disrupted family life and prevented him, his wife and his (at the time of this application) six children, and now a seventh, from enjoying life as a family together in a home of their choosing.

[3]I shall describe what he says were particular problems in seeking to obtain access to the courts to obtain a remedy.

[4]The judicial review claim itself seeks 31 declarations and seven injunctive orders. The declarations include a declaration on incompatibility of statute with the European Convention on Human Rights and Fundamental Freedoms. There are two central matters, however, which Mr G has relied upon in front of me today in the course of focussed and elegantly presented submissions.

[5]To understand some of the background it is useful, and indeed in my view essential, to read the decision of Hedley J reported at

[2010] EWHC 728

Family in which he set out his findings of fact in respect of the family and Mr and Mrs G.

[6]The allegations relate to the way in which the authorities interacted with the family. In particular Mr G maintains that he has been the subject of a secret file which arises from his being convicted in 1975 of an offence of common assault on a child. That has, he maintains, blighted his life since, because the public authorities have from time to time paid particular regard to it and regarded him as someone whom it is necessary to keep under surveillance. It is worth noting that this point is to some extent supported, in that Hedley J regarded events so long ago as being irrelevant to any present issue which arose in respect of the welfare of the children today.

[7]On the 25 March 2009 the police, together with a midwife and social workers, forced their way in to the house in which Mr G and Mrs G and their then five children were living. There had been a suggestion, which appears to be without any sound factual basis, that Mrs G was being kept prisoner or had been subject to violence by her husband as a controlling and dangerous man. Mr G asserts that fifteen officers took part in the raid on his house at least, of whom he says fifteen were armed. The following day on 26 March he complains in his application for judicial review that he was released on police bail. His wife had been obliged the day before to agree that she would leave him if she were to retain association with the children.

[8]When he was released on police bail (the allegations apparently relating to suggestions that he had falsely imprisoned his wife and had been guilty of child neglect and child cruelty) it was on condition that he should not contact his wife and should only be permitted supervised contact with his children. He complains that the following day on 27 March there was an interim care order made at a hearing for which he and his wife had no adequate notice. The court initially refused to make such orders, but on 31 March interim care orders were granted at the Lancaster County Court.

[9]On 20 May 2009 Mr G made an application to vary the conditions attached to his bail. That application to vary was refused. He complains that the procedure adopted in the Magistrates’ Court was unfair to him; the conditions forcibly separated him from his wife and children. That was on the purported basis that they were witnesses in potential proceedings against him. But it ought to have been appreciated that this broke up the family by order of the state. He had no legal assistance at court; he complains that the procedure gives him no right to call witnesses, and that when Mrs G attempted to give evidence on his behalf to say that she was in no fear in respect of him she had to be removed and was removed from the court, and Detective Constable Cooper for the police maintained to the magistrates that they should not hear that evidence because, as he suggested, she was under Mr G's control and would not be speaking independently.

[10]He complains that on 22 May 2009 the police and social workers broke promises which had been made to HHJ Rawkins at the Lancaster County Court that they would not seek to remove the younger children from Mrs G's care. She at this stage was about to give birth to the G's sixth child, a son, R. He was born on 29 May. On 30 May police went to the hospital and the baby was placed in police protection. A police protection order was made which the Lancashire constabulary maintain was duly authorised. Mrs G claims that the appropriate child protection authority was Lancashire social services because her rented accommodation was in Burnley, which is in Lancashire, and that Blackpool had no jurisdiction to request or require the police to take the steps that they did, but they did.

[11]On 1 June an emergency protection order was granted. It should be noted, Mr G complains, that an interim care order had been first applied for but refused on an ex parte application by Blackpool on the same day. So far as the emergency protection order was concerned, made under the terms of Section 44 of the Children Act 1989, no notice had been given, says Mr G, to him, and Mrs G had been told in a hospital bed, when she was on a drip, at 3.30, after the child had been physically removed from her care. He told me in argument that he had in fact been present at the court in the court house, not in respect of this matter, and HHJ Rawkins had required him to be served with papers and deemed him to have been served with notice of proceedings and to act as agent for Mrs G, and thereby treated her also as having had appropriate notice of those proceedings.

[12]It was not until June 2010 that Mr G was released from the conditions of the bail about which he objects. Therefore the decision to impose the bail condition was made on 26 March 2009; time would have expired if proceedings were not brought promptly by in any event by 25 June and, so far as the emergency protection order was concerned, granted on 1 June, time would have expired no later than three months after that date. But as I have noted, and as was the basis for HHJ Rayner's first basis for refusal, the claims were not brought within that period.

[13]The reason for that, I am told, was that Mr G tried but failed to bring proceedings. He could not issue an application to the administrative court without first paying the appropriate fee or having fee exemption. The appropriate fee is currently one of £50 (see Schedule 1, column 1, paragraph 1.9A to the Civil Proceedings Fees Order 2008, SI 1053 of 2008) to be followed by a further fee of £180 where the court has made an order giving permission to proceed. Schedule 2 applies for the purpose of ascertaining whether a party is entitled to a remission or part remission of the fee which is otherwise prescribed by the order. Schedule 2 sets out that a person may be entitled to fee remission if he shows that he or she is in receipt of one of the benefits there set out as qualifying benefits: indeed provides that no fee is payable if the party is in receipt of such a qualifying benefit.

[14]The question is how that is to be proved. What Mr G said was that for a time he was without work and without benefit. He had no income but he had been in receipt of ESA for a time. He told me that documentation was demanded of him to prove that he was in receipt of qualifying benefit, or had no income. The demands (he said) show a lack of understanding of how the benefit system works in practice. Moreover, there were two claimants; the second was his wife. The Department of Work and Pensions choose one of a couple to be the recipient of benefit. Any correspondence thus will prove or might prove that he or she is the recipient but will not necessarily prove that their partner is; yet for exemption both have to prove that they are exempt.

[15]The Court Service told him it needed a letter which said that Mr G was in receipt of the prescribed benefit and that Mrs G also received it - but the Department refused to provide one. HMCS refused to accept that position. He complains that every court in the north-west was making up its own rules as to what proof was acceptable and had no discretion to override the requirement, and that he had no ability to get to a judge to deal with the matter.

[16]When he complained as he did about the inability of the courts to see their way to issue the application he wanted to make, essentially in respect of his conditions of bail and the grant of the emergency protection order, he got a reply (after some unsuccessful attempts to correspond with the office) from the group director of the Royal Courts of Justice, Mr Fash. That referred to his having made an application dated 29 June 2009. I infer therefore that Mr G tried to make an application in June 2009. Given the discursive nature of the grounds eventually filed, I cannot think that any application then made would not also have encompassed these two central matters which were plainly matters of great concern to him. He tells me that he had his application returned seven times. The court complained that he and his wife did not have an exemption certificate; they could undertake to pay the fee and the claim might be issued - but of course that undertaking has to be given honestly and upon a sound basis. He could not give the undertaking because he did not know if he would be in a position to honour it.

[17]An application for remission of fees for the administrative court proceedings must be made in advance. Ultimately it was not until 12 months had passed, says Mr G, that the fees office concluded that he was entitled to issue the proceedings and they were then issued.

[18]When the claim was refused on the papers after that history on 14 January 2011 Mr G, by reference to the 2007 White Book to which he had access, considered that he would have to pay the fee for making an application, the application being for reconsideration of the decision reached on papers. It was only after he had issued the application late that he was given to understand by the court office that he did not need to make any further payment because this was not an application to which the application fee specified in Civil Proceedings Fees Order 2008 applied. That no doubt is because the application is actually one and the same application; it is an application for permission to proceed by way of judicial review. It is not determined merely by a decision on paper without there being a right to make oral representations to a judge if the applicant is not prepared to accept the paper decision. But it is understandable that Mr G, with his experience of having had difficulties over fee remission, should have looked carefully at the wording of the Fees Order, and I do not think it was entirely unreasonable of him to conclude that he required to obtain fee remission in advance given his reading of the order. If the position is as represented to him since, it certainly might be made clearer that a fee does not have to be paid for renewal. That is not set out in clear terms in the text version of the order nor in guidance related to it.

[19]He emphasises that the important matters are what he calls the justice of the case, and argues that a pedantic approach, as he calls it, should not be taken to time limits.

[20]The problems which he had in issuing his first application for judicial review were not limited to finance. When the group director, having written to him in September, had said that the court could accept a claim the court then sent it back upon the grounds that it sought to query the making of an emergency protection order. That was an order made by the county court. The court office, and subsequently the Master of the Administrative Court, took the view that it was not open by way of judicial review to challenge a decision of the county court; the route to challenge a county court decision was by appeal to the Court of Appeal and it would only be in cases where the county court judge had acted without jurisdiction (see the case of R (Sivasubramaniam) v Wandsworth County Court

[2002] EWCA Civ 1738

) that judicial review would be appropriate. The court therefore refused to accept the claim.

[21]Mr G complains, again with considerable force, that he could not have appealed this particular order to the Court of Appeal because the Children Act 1989 Section 45(10) provides specifically that no appeal may be made against the making of, or refusal to make, an emergency protection order. Therefore it would not have been open to the Court of Appeal to entertain any such appeal.

[22]Given the difficulties in launching the application Mr G contends that it would be in the interests of justice for this court to extend time, which technically the applications would require if they are to be received. That led me to ask Mr G to say what he wished to say about the two main matters which he sought to raise: those are the issue of the bail conditions and the grant of the emergency protection order.

[23]The conditions in respect of bail were removed before the issue of the claim in July 2010. They ceased to apply to Mr G in any formal sense in early June; they had ceased to apply in any practical sense before that. He maintains that this is however not simply a matter of history. There is a continuing relevance to the claim. It is important that this court should take steps to make sure that a situation such as this does not happen again in which effectively, as he submits, a man can be separated by the order of the authorities from his wife and children for no good reason, but more importantly without any prospect of effective challenge because of the inadequacies of the Magistrates’ Court procedure applicable to his application to the magistrates court for removal of bail conditions, there being no other route of appeal open to him in which the procedure might enable him to be represented and to call appropriate evidence where relevant. Therefore he maintains that there is here an issue which it is important for the court to hear and to determine.

[24]As to the emergency protection order, Hedley J said this at paragraph 57 of his judgment:

"...there have been some significant procedural problems in this case which I have identified. However those cannot be cured at the expense of the welfare of these children. The decision to remove them would have been wholly justifiable on the facts as I have found them to be, though the removal of R would not have needed to have been done as hastily as it was. It therefore cannot be right to seek to redress what has gone wrong by setting aside interim care orders which otherwise would have been properly made and summarily returning these children as some kind of gesture under Article 13 and I am not prepared to do so."

[25]It is the hasty removal of R to which the complaint in respect of the emergency protection order is directed.

[26]Mr G complains that the other routes which might be thought available to challenge such a decision, there being by statute no right to appeal, were in his case of no value. The ombudsman is likely to, and did, refuse to consider his complaint because of the pending legal proceedings (that I think being a reference to these proceedings). The decision made cannot be taken to this court unless there is no other suitable remedy. When Mr G complained to the Secretary of State the reply was that the Secretary of State was not interested in an individual case but was only interested if there was evidence that a local authority was taking a systematic approach which caused problems in its area of authority. The local authority, he says, refused to operate the Children Act complaints scheme. His claim here is of continuing relevance, he maintains, because Section 45(10) is incompatible with the Convention on Human Rights. I note in this regard that this would be a difficult argument to advance. That is because an emergency protection order may be made only for a maximum period of 80 days. Plainly it envisages a situation of urgency and emergency, as the name suggests, where there is imminent danger (as Munby J has described it in Ex parte B ) which must first be established.

[27]Thus it does not seem to me necessarily and obviously incompatible with the requirements in the Convention to safeguard human life with Articles 2 and 3 and, it may be, Article 5 so far as children are concerned. So long as the driving force is the welfare of the child as Section 1 of the Children Act 1989 makes clear, and as the United Nations Convention and Protection of the Rights of Children makes clear too, there is not necessarily any conflict. The order is made by a court to give a right of appeal that might be thought to detract from its effectiveness; but in any event a parent or the child may apply for an emergency protection order to be discharged, and provided (see subsection (11)) that that person was given notice and was present at the hearing they may come within the protection of that sub section and make that application. There are thus some safeguards within the section itself.

[28]It may be that in other proceedings the question of the compatibility of this section of the Children Act has had further and more developed scrutiny, but for the moment I am invited to say that, although there is no longer any such order in force here (it lapsed long ago) Mr G has a continuing interest in pursuing his claim in respect of it.

[29]I am not satisfied that it would be right to exercise my discretion to permit him to proceed because in my view he does not have a real substantial interest which would be protected by judicial review proceedings. In short, this is an historical matter which should not in my view be litigated in this court. Conclusions

[30]In my view I can deal wholesale with all the allegations made in the originating application save two by saying they were not advanced before me today by Mr G. I accept he had little time in which to do that, but in any event none of those allegations seems to me to have any force in it. Of the two which might have some force, those in respect of bail and those in respect of the emergency protection order, I have set out in some detail what Mr G was arguing so that, if necessary, a court beyond this can see what was said to me and what my reasoning was for concluding that in both respects the claim is historical.

[31]By the time the proceedings were issued Mr G was no longer subject to the bail conditions of which he objected. He had gone to the Magistrates’ Court, and the Magistrates’ Court had determined that the conditions would not be lifted before they were. He has not named the magistrates court as a defendant to the proceedings. This court will consider cases relating to bail in the Magistrates’ Court but will do so on a self-denying ordnance; there has to be some serious procedural irregularity or error of law if this court is to interfere. Even if the Magistrates’ Court had been joined I think it doubtful that the allegations made - even if the bail conditions were extant - would have been sufficient to bring the maintenance of those conditions within the jurisdiction of this court, but as I have said my principal ground is that they are really historical.

[32]I have set out the history in recognition of Mr G's argument but it is important that a situation such as this as happened to him should not happen again.

[33]As far as the emergency protection order is concerned, that lasted for eight days. It was superseded by interim care orders. The interim care orders were orders of the court made under the Children Act by courts of competent jurisdiction. I have read the decision of Hedley J in which he concludes, as I have indicated, that such orders were appropriate. He would not set them aside; they would otherwise have been properly made, as he says. As it happens, I am told by Mr G that with the exception of the oldest child, E, all children are now restored to both parents to live together with the support of the local authority and social workers concerned.

[34]I have considered whether there is any sufficient public interest in the question of potential incompatibility with the Convention of Section 45(10) which, as I have indicated, may need to be considered by some later court on some later occasion. I have concluded, as those words suggest, that this would not be an appropriate case in which to do so, in particular because, as it seems to me, the matter is now so long in the past by reason no doubt of the difficulties which Mr G had in bringing a claim.

[35]I turn then, having dealt with the merits, to the question of time. Here there is no doubt that the claim was brought outside the three-month period and the claim for renewal was brought outside the seven-day period. I have explained the reasons for that. The central argument that Mr G puts forward is that because of the particular difficulties the court should not take an unduly restrictive view and it should permit justice to be done. My view here is bound up entirely with my view of the merits. It seems to me that given the lack or relative lack of merits of the central claims which the application would seek to advance that I should not extend time in this case. Had the merits been strong, I would have been inclined to consider favourably that particular course, despite the exceptional length of time; but I do take into account the particular jurisdiction of the administrative court. Matters of public maladministration need to be dealt with quickly and promptly. The public has an interest in a speedy and effective remedy for poor administration. Those affected by administrative acts need to know quickly whether they are justified in feeling aggrieved or not. In this area of court proceedings speed is vitally important. For that reason time limits are strictly to be observed. The three-month period, though it may be extended by order, is not a target to be aimed at but a limit within which at the outside proceedings are to be issued. That emphasises the importance of currency and immediacy in the administrative court.

[36]Those considerations give me comfort in the decision I would in any event otherwise have reached, as I have already indicated in this judgment. Therefore for those reasons, and notwithstanding the well structured and eloquent submissions of Mr G, I shall dismiss this claim.

[37]Mr G has eventually had fee exemption for bringing this claim. I suspect that the recovery of costs against him might be academic. There have been applications for the costs of the acknowledgement of service by the respective parties. I should be happy to consider those applications if they are renewed on paper to me within 14 days with a copy to Mr G. He will be at liberty to argue that those applications should not be acceded to in principle or in amount. Providing he does so within a further 14 days after receipt of any applications by another party, after which -- unless any party specifically requests an oral hearing, which I do not encourage -- the matter of costs will be resolved by me on the papers. MR G: Your Lordship, I don’t know if you realise that when you were talking you indicated something about the bail conditions being based on charges. There were no charges. MR JUSTICE LANGSTAFF: Thank you for that. You are quite right to remind me, you had told me and I ... based on allegations I think is a better way of putting it MR G: Yes. You also mentioned the Magistrates’ Court not being joined. I understand that there is provision of the Justice of the Peace Act 1979 which says that magistrates do not need to be joined or served with any papers if there is any judicial review application in respect of any decision they have made. MR JUSTICE LANGSTAFF: Well that is rather surprising because they frequently are. But there we are. I will look at that when the matter comes back to me if it does, for revision. The process is that having giving a judgment orally the transcript will come back so I can tidy up any infelicities of expression, I will put right the matter you have mentioned about charges and I will change that and anything else that needs to be changed to that what I thought I was saying is what is recorded. MR G: And finally your Lordship may think it's a matter for another day as you have indicated about 14 days about the costs, but my understanding of the costs position ... the costs position is that permission stage is that the court should not order an unsuccessful claimant to pay the costs of the defendant or an interested party to attend an oral hearing successfully resisting an application for permission, except in exceptional circumstances and also ... the case was also referred to the fact that judicial review preaction protocols were served on the police and on the local authority and they didn’t respond to them. Nobody responded to the preaction protocol. MR JUSTICE LANGSTAFF: The matter you may have to think about and address when ... if there is an application for costs made, and I have made the order I have to give you some thinking time about it, is this. The part of the rule you quoted from is entirely right insofar as it relates to the costs of the winners if I can call them that, if they have been here, their costs of attending a hearing such as this. But if you read the rule carefully you will see that the provision allows them to be or in fact requires them normally to be paid for the costs of preparing the acknowledgement of service and grounds of resistance... MR G: Yes... MR JUSTICE LANGSTAFF: But that is because the rules require a defendant to put in an acknowledgement of service, and so they are normally entitled to be paid before that. They are not entitled to be paid for costs which are not related to that only for that. MR G: But I understand there is another rule that says not only must they claim the costs in the acknowledgement of service they must specify an amount which they have in mind ... the local authority haven’t done that only the police. MR JUSTICE LANGSTAFF: The police have; the local authority have not. MR G: But the local authority haven’t, and what you seem to be canvassing with your order is that not only the respondent but also any interested party can make an application for costs in respect of this refused permission even though they haven’t complied with the rules. MR JUSTICE LANGSTAFF: I am not saying they are entitled to costs, I am saying if you want to make an application ... I will consider an application on its merits, and you are absolutely right that if they haven’t complied with the rules then obviously I am going to take that into account and make my decision appropriately. MR G: Yes. Well, as I say and I mean I also think that … that when one is thinking about costs in these situations I think you have to look at the reality of the situation in that when a new born baby is removed from parents, and I have heeded what you have said about the EPO and its lack of merit or relative merit as you put it, but when a new born baby is removed from its parents I think that there isn’t a reasonable parent in the whole of the country who would not want to take some action to try to get that child back and I don’t think any parent should be deterred from applying to the court to have the child returned or to question its removal by the threat of costs hanging over them. I think that human rights are very precious and very valuable things and, in the same way as social workers don’t like negligence claims against them because they say it inhibits the performance of their duties, they don’t want to be looking behind them to see who is after them for a negligence claim, parents don’t want to be frightened of coming to the court and asking the court for relief when a new born baby is removed for the fear of costs spectre behind them, and I think any suggestion of ... that my wife and I might have to actually pay for coming to the court to ask for our child back is offensive to any notion of decency and human rights. MR JUSTICE LANGSTAFF: Well, I understand what you have said. This application to this court isn’t, today at any rate, about getting a child back, is it? It relates to circumstances in which your child was taken from you, but isn’t now about getting your child back? MR G: No it isn’t, you're right, except that we may have children in the future and nothing has been said or done in order to prevent the police arresting me this afternoon and putting me on bail for another two years and then snatching another child based on a covert surveillance layman's file which still exists and then us having to spend another two years banging our heads against brick walls to try to get something done, and if I may so your Lordship I do think that you have let HMCS off the hook very lightly that we banged on the doors of the Royal Courts of Justice for 12 months to get an application heard and it was constantly and repeatedly refused on all kinds of reasons and there is nothing can be done about that. We have come to you and said, never mind the merits of the case, the reason that you can now sit there your Lordship and say this is too late is because HMCS engineered that, it was ensured that by the time we finally got to a judge it would be too late and I think that is wrong and someone should carry the can for that and we should be recompensed as parents for two years of our young child's life which was taken from us and from him. He will never recover from that and neither will we, and I ... you know ... Without labouring the point any more, you know, I do think that ... that all that has happened, your Lordship, when courts fail to deal with the lack or the failure of HMCS to allow us to go to a judge, it just engenders within us further resentment and a further drive just to one day go before the court and the court will say you have been wrong, and we are going to put it right.