A Mother, R (on the application of) v The Family Court at York & Ors

Judicial review of a Circuit Judge’s refusal of permission to appeal is available only in truly exceptional circumstances. The claimant must show a jurisdictional error in the narrow sense, or a procedural irregularity so fundamental that it frustrated or corrupted the judicial process and denied a fair hearing.

Errors of law or fact, disagreement with welfare assessments, alleged irrationality, inadequate reasons, bias allegations unsupported by evidence, or the seriousness of the consequences do not ordinarily satisfy that threshold. Engagement of Convention rights does not create an additional tier of appeal. The court may consider delay, but should not refuse permission on delay alone where the claim would otherwise be arguable.

The claimant, the mother of two children, sought judicial review of the Family Court at York’s refusal to grant permission to appeal two orders of the District Judge. The orders transferred the children’s residence to their father, restricted the mother’s contact to supervised contact, reduced that contact, and made further consequential orders.

A Circuit Judge refused permission to appeal on the basis that neither proposed appeal had a realistic prospect of success and that there was no other compelling reason for an appeal to be heard. A first application for judicial review was refused on the papers. The issue on renewal was whether the Circuit Judge’s decision arguably involved a procedural irregularity amounting to denial of a fair hearing, within the narrow exception recognised in the authorities.

1. Application refused. The claimant had no realistic prospect of showing that the Circuit Judge’s refusal of permission to appeal involved the exceptional error required for judicial review.
2. The phrase “procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing” in Sivasubramaniam v Wandsworth County Court and ors [2002] EWCA Civ 1738 was not a gateway for ordinary public law challenges. Read with Gregory v Turner [2003] EWCA Civ 183 and R (Strickson) v Preston County Court and ors [2007] EWCA Civ 1132, it concerned a defect which frustrated or corrupted the judicial process, such as a fundamental jurisdictional error or grave procedural failure.
3. The complaints advanced were, at their highest, alleged errors of law or fact, disagreement with findings and welfare assessments, alleged irrationality, criticism of the treatment of parental alienation, and alleged bias. They did not disclose a denial of a fair hearing, gross procedural failure, or a court acting in complete disregard of its duties.
4. The Family Court had been entitled to consider the factual behaviour found proved rather than the label of parental alienation. The Circuit Judge was also entitled to conclude that the District Judge had properly considered the children’s wishes and feelings, the relevant welfare factors, proportionality, and the consequences of supervised contact.
5. The seriousness of the orders and the engagement of rights under the European Convention on Human Rights and other international instruments did not alter the narrow judicial review test. The claimant had been properly heard and represented, and both lower judgments gave comprehensive reasons.
6. Delay was a relevant consideration under CPR 54.5(1), but would not alone have justified refusal of permission if the claim had otherwise been arguable. Permission was nevertheless refused because the claim disclosed no arguable ground within the exceptional jurisdiction.

1. Circuit Judge, Family Court at York: on 10 August 2023 refused permission to appeal the District Judge’s orders.
2. High Court, Administrative Court: HHJ Jarman KC refused permission to apply for judicial review on the papers on 25 September 2024. Mrs Justice Hill, on renewal after an oral hearing, refused permission.