RB, R (On the Application Of) v The Family Court At Cardiff & Ors

Judicial review of a refusal of permission to appeal in family proceedings is subject to a highly restrictive test. Where an adequate appeal process has considered the underlying decision, the Administrative Court should not undertake a further merits review. Judicial review is ordinarily available only where there is a jurisdictional error in the narrow sense or a procedural irregularity amounting to a denial of a fair hearing. A party’s disappointment that evidence was excluded, following a full and careful consideration of its admissibility, does not satisfy that threshold.

The claimant mother sought permission to judicially review a decision of HHJ Parry refusing permission to appeal against decisions of DJ Regan in family proceedings. DJ Regan had refused to admit a psychiatric report prepared by Dr Mirza as proposed expert evidence. HHJ Parry conducted a detailed review of the proposed appeal and concluded that the District Judge’s decision was correct and that there were no realistic prospects of success.

The claimant argued that exclusion of the report denied her a fair hearing. The central issue was whether that complaint disclosed an arguable jurisdictional error or a procedural irregularity of the exceptional kind permitting judicial review.

1. The application was refused. There was no order as to costs.
2. The governing approach was established in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475. Where a decision of a lower judge is subject to an appeal and permission to appeal has been considered, including on oral renewal, the statutory appeal structure ordinarily provides fair, adequate and proportionate protection against error. The High Court should not use judicial review as a further merits appeal.
3. Judicial review may nevertheless be arguable in the exceptional case of jurisdictional error in the narrow pre-Anisminic sense or a procedural irregularity amounting to a denial of the right to a fair hearing. No such error was suggested or could be identified here.
4. The claimant had received a full hearing before DJ Regan on whether the proposed evidence should be admitted, including consideration of the report and the circumstances in which it was obtained. She then received a further detailed and thorough consideration from HHJ Parry on the renewed application for permission to appeal.
5. The refusal to admit the report resulted from an exercise of discretion in the interests of justice. It did not mean that the claimant had been denied access to a court capable of considering the evidence. Her complaint was, in substance, an attempt to revisit the merits of the evidential decision, and was wholly misconceived.
6. A later order under section 91(14) of the Children Act 1989 was a separate matter and was not before the court.

• High Court (Administrative Court): The renewed application for permission to bring judicial review proceedings was refused. There was no order as to costs.
• Family Court at Cardiff: DJ Regan refused to admit the proposed expert report and later refused permission to appeal was sought against that decision.
• Family Court at Cardiff: HHJ Parry refused permission to appeal after oral renewal, concluding that the underlying decision was correct and that there were no realistic prospects of success.