Sookhan v The Children’s Authority of Trinidad and Tobago (Trinidad and Tobago)

The threshold for leave to apply for judicial review is low. Leave should be granted where there is an arguable ground with a realistic prospect of success, unless a discretionary bar applies. An appellate court should interfere with a grant of leave only where it is satisfied that leave should plainly not have been granted. Procedural fairness in public law is issue- and fact-sensitive. Whether fairness requires an adoption authority to inform an applicant of statutory application requirements, and whether the procedure adopted was fair, may require determination at the substantive hearing. At the leave stage, an appeal against leave cannot succeed merely because the claim appears weak or the respondent has a strong case.

The respondent applied for leave to seek judicial review of the Children’s Authority’s alleged failure, or decision not, to consider her application to be placed on the list of suitable persons for adoption. Her application also concerned adoption of a particular child, but she withdrew that relief before the Board so that the child’s adoption by prospective adopters would not be impeded.

The High Court dismissed the application for leave, holding that the application did not comply with regulation 3(2)(c) of the Adoption of Children Regulations because it lacked police certificates of character, and that the Authority’s failure to explain the requirement was not arguably unfair. The Court of Appeal allowed the appeal and granted leave. The central issue was whether there was an arguable ground of procedural unfairness with a realistic prospect of success.

1. Appeal dismissed. The Board applied the low threshold for leave to apply for judicial review. The relevant question was whether there was an arguable ground with a realistic prospect of success and no discretionary bar. The Authority no longer relied on delay after the respondent withdrew relief concerning the particular child.
2. An appellate court should interfere with a grant of leave only where it is satisfied that leave plainly should not have been granted. The Board adopted the reasoning in R v Secretary of State for the Home Department, Ex p Chinoy (1991) 4 Admin LR 457, concerning the sparing use of applications to set aside ex parte leave, as applicable to an appeal against the grant of leave.
3. Procedural fairness in public law is issue- and fact-sensitive. The Board was not persuaded that the legal position was entirely clear or that the Court of Appeal was plainly wrong to find it arguable that a fair procedure should apply to an application for placement on the list of suitable adopters.
4. On the evidence as it stood, each potential breach identified by the Court of Appeal was arguable: failure to advise the respondent of the requirement for police certificates before application; failure to inform her at an appropriate time that the application was considered defective; deprivation of an opportunity to correct the omission; possible application of a policy excluding nurses from adopting; and arbitrary dismissal of the application without justifiable reasons.
5. The Board therefore dismissed the appeal. The respondent’s judicial review claim was not determined on its merits. The family judge was to be provided with a copy of the judgment.

• Privy Council: Appeal from the Court of Appeal of the Republic of Trinidad and Tobago dismissed.
• Court of Appeal of the Republic of Trinidad and Tobago: On 10 August 2020, the respondent’s appeal was allowed and leave to apply for judicial review was granted. By order dated 13 August 2020, the High Court costs order was set aside and consequential costs directions were made.
• High Court: On 15 July 2020, with written reasons given on 7 August 2020, Jacqueline Wilson J dismissed the respondent’s application for leave to apply for judicial review and ordered costs.