CB, R (on the application of) v (Sheffield County Court & Ors

Judicial review is ordinarily refused where a suitable alternative remedy exists. Where Parliament has provided a statutory appeal route, it will rarely be appropriate to bypass that route by seeking judicial review. This applies with particular force to challenges against county court decisions where permission to appeal may be sought from the judge or the Court of Appeal. Only exceptional circumstances may justify judicial review instead. A litigant’s misunderstanding of the available appeal route does not remove the requirement to use the alternative remedy. In family proceedings, where the rights of a child conflict with those of a parent or wider family, the child’s Article 8 rights prevail.

The claimant, the mother of a child subject to a care order, renewed an application for permission to seek judicial review of a decision by Sheffield County Court refusing her permission to apply to discharge the care order and for contact. The decision followed an earlier order under section 91(14) of the Children Act 1989. Permission had previously been refused by Wilkie J, and an earlier judicial review application concerning the care proceedings had been refused by Langstaff J.

The central issue was whether judicial review was available when the claimant had not pursued the ordinary appellate route to the Court of Appeal.

1. Application refused. The renewed application for permission to seek judicial review was refused and certified as totally without merit.
2. The proper route for challenging a county court judge’s decision in care proceedings was to seek permission to appeal from that judge or from the Court of Appeal. The claimant had not pursued that route.
3. Following and adopting the principles in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, [2003] 1 WLR 475, judicial review is customarily refused where an adequate alternative remedy exists. Where a statutory appeal procedure is available, bypassing it will be permissible only in exceptional circumstances.
4. The claimant’s lack of legal representation and misunderstanding of what the county court judge had said about appealing did not create an arguable basis for judicial review. There was no realistic prospect of establishing procedural unfairness, an error of law or other material irregularity.
5. The Article 6 and Article 8 arguments were not properly arguable. In any event, where the Article 8 rights of a child conflict with those of a parent, grandparent or wider family, the child’s rights prevail.
6. The court declined to make a civil restraint order immediately. Any further judicial review application by the claimant was to be referred to the judge, with the possibility of strike-out or restraint proceedings if it was equally devoid of merit.

There was no appeal from the county court decision. Permission to seek judicial review was refused by Wilkie J on 29 October 2012. The claimant renewed the application before the Administrative Court, which refused it.