X and Y, R (on the application of) v Gloucestershire County Council

Judicial review is ordinarily inappropriate where parents seek to prevent a local authority commencing emergency protection or care proceedings. The proper forum is the court dealing with those proceedings, where the parents can contest both the merits and any alleged breach of Convention rights. Judicial review is concerned with the legality of the authority’s decision-making process, not the merits of the proposed child-protection application.

Restraint of proceedings in a court with jurisdiction should be contemplated only exceptionally, such as where that court lacks jurisdiction, the proceedings would be vexatious or abusive, or concurrent proceedings create a real risk of serious prejudice. Emergency removal at or shortly after birth requires compelling evidence, proper notice and generous family contact arrangements.

The claimants, the parents of an unborn child, sought judicial review and interim injunctive relief against Gloucestershire County Council. They wished to prevent the authority applying for an emergency protection order or care order after the child’s birth, or alternatively to require a residential assessment.

The authority intended to commence proceedings after birth because of concerns arising from the parents’ previous involvement with child-protection proceedings and assessments. The parents alleged that the authority’s decision-making was unlawful, unfair and incompatible with the Human Rights Act 1998 and the Convention.

The Administrative Court had to decide whether permission and interim relief should be granted, and more fundamentally whether judicial review was an appropriate means of preventing anticipated proceedings in the Family Proceedings Court.

1. Disposition. Permission to apply for judicial review and interim relief were refused. The proceedings were dismissed.
2. The Administrative Court’s role was confined to reviewing the legality of the local authority’s decision-making process. It was not to determine the merits of the authority’s proposed application for an emergency protection or interim care order. The authority had at least an arguable basis for making an application, and there was no arguable case that doing so would be unlawful, unreasonable, unfair or incompatible with Convention rights.
3. Parents’ proper remedy was to defend any emergency protection or care proceedings in the court dealing with them. The approach in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119 and Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam) applied by analogy even though proceedings had not yet begun. Separate judicial review or Human Rights Act proceedings were appropriate only in a wholly exceptional case.
4. In general, an injunction restraining the commencement of proceedings in a court with jurisdiction should be granted only where that court lacked jurisdiction, the proposed proceedings were vexatious or abusive, or concurrent proceedings created a real risk of serious prejudice. None of those circumstances existed here.
5. Applications of this kind should be dealt with urgently by a nominated Administrative Court judge experienced in family work, with immediate directions and, where necessary, an oral hearing without awaiting acknowledgement of service.
6. The judge added guidance for any later child-protection application. Removal at or shortly after birth is a draconian and extremely harsh measure. Evidence must be full, detailed, precise and compelling; parents should ordinarily receive adequate notice and the supporting evidence; and contact should normally be regular and generous, including arrangements enabling breast-feeding where reasonably requested.

The judgment records earlier County Court proceedings brought by the parents against the local authority. Ex parte relief was refused on 30 December 2002 and the proceedings were dismissed by agreement on 3 February 2003. The present proceedings were a first-instance judicial review claim in the Administrative Court.