CM, R (on the Application of) v Kingston-Upon-Thames County Court & Anor

Judicial review of a county court judge’s refusal of permission to appeal is subject to the established and exceptional limits governing review of county court decisions. However, the court may refuse permission for judicial review because the proposed proceedings would be pointless. Where substantial time has passed in a child-contact dispute, quashing the refusal of permission to appeal may merely revive an obsolete decision requiring fresh investigation. If no order under section 91(14) of the Children Act 1989 restricts a fresh application, the proper course may be to issue a new application for contact.

The claimant father sought judicial review of HHJ Williams’s refusal, on 9 April 2014, of permission to appeal against District Judge Smart’s decision not to order direct contact with the claimant’s daughter. The father also challenged the requirement for permission to appeal under rule 30.3 and practice direction 30A of the Family Procedure Rules 2010.

Permission to apply for judicial review had first been refused on paper by Stewart J. On renewal, the central questions were whether the claim fell within the exceptional circumstances permitting judicial review of a refusal of permission to appeal and whether any relief would serve a useful purpose.

1. Application withdrawn and permission granted to withdraw. The claimant was permitted to withdraw the judicial review claim. There was no order as to costs, and the judgment transcript was to be provided at public expense.
2. The principles governing judicial review of a county court judge’s decision were those described in Sivasubramanian v Wandsworth County Court [2003] 1 WLR 475. The judge did not disagree with Stewart J’s view that the grounds did not fall within the exceptions to the general unavailability of judicial review where a circuit judge has refused permission to appeal.
3. There was, in any event, a separate and more cogent reason to refuse permission: the proposed judicial review was pointless. Even if HHJ Williams’s refusal were quashed, the matter would return to a circuit judge as a stale dispute. The passage of time meant that the court could not sensibly determine an abstract appeal without fresh and further investigation.
4. The father remained entitled to issue a fresh, freestanding application for direct contact because no direction under section 91(14) of the Children Act 1989 restricted that right. Any fresh proceedings would require appropriate directions and could involve a new CAFCASS investigation, possible appointment of a guardian, and expert assessment of the child’s circumstances. The previous CAFCASS officer should not simply be reappointed.
5. The Administrative Court could not itself conduct the necessary fresh welfare investigation or make provision for contact within judicial review proceedings. The fresh application therefore provided the practical route forward.

• High Court (Administrative Court): on renewal, the claimant was permitted to withdraw his application for judicial review of HHJ Williams’s decision dated 9 April 2014.
• Kingston-upon-Thames County Court: District Judge Smart refused to make an order for direct contact in October 2013. HHJ Williams refused permission to appeal on 9 April 2014, having effectively considered the proposed appeal on its merits.
• Administrative Court: Stewart J refused permission to apply for judicial review on paper on 2 July 2014.