BGE & Anor, R (on the application of) v Birmingham Children’s Trust

Judicial review is a remedy of last resort. The Administrative Court should not determine disputes which fall within the Family Court’s jurisdiction where an adequate, and more appropriate, alternative remedy is available. Issues concerning contact under section 34 of the Children Act 1989, discharge of care orders under section 39, and placement decisions falling within that jurisdiction should ordinarily be pursued in the Family Court. Judicial review does not exist to usurp the Family Court’s role or to direct a local authority’s procedural conduct. A renewed application cannot be used to introduce a substantially new challenge to later decisions, although the court may deal with such grounds where the defendant consents, subject to finality and procedural fairness. A claim based on an alleged disproportionate interference with Article 8 rights was not reasonably arguable where the underlying matters had an alternative Family Court remedy.

The claimants, parents of four children subject to care orders, sought judicial review of Birmingham Children’s Trust’s decisions concerning contact, placement, safeguarding representations, complaints and disclosure. They also initially challenged the failure to list applications in the Family Court and joined HMCTS, but that issue was no longer pursued after contact was reinstated by consent and subsequent Family Court proceedings took place.

At the renewal hearing, the claimants advanced four grounds, principally concerning a reduction in contact, the child’s placement, consultation and the cumulative effect of the alleged failings under Article 8. The central issues were whether those matters belonged in judicial review and whether they disclosed an arguable public law or Convention claim.

1. Outcome. The renewed application was dismissed. Permission was refused on all four grounds. The claimants were ordered to pay £1,000 towards the defendant’s costs within 28 days.
2. Proper forum and alternative remedy. Grounds concerning the frequency of contact, placement, safeguarding, consultation, disclosure and complaints were matters for the Family Court. The claimants could apply under section 34 of the Children Act 1989 concerning contact and under section 39 concerning discharge of the care orders. A placement challenge could be addressed within an application concerning the care order or its discharge.
3. Limits of judicial review. The Administrative Court’s function was to determine whether a decision was lawful, unlawful or irrational. It was not to usurp the Family Court’s role or give directions about the local authority’s procedural conduct. Where an adequate and more appropriate alternative remedy existed, that was itself a reason to refuse permission. Judicial review remained a remedy of last resort.
4. Renewed application and procedural fairness. The claimants had attempted largely to challenge decisions made after the judicial review claim was issued and after the Family Court hearing. That created procedural unfairness because those matters had not formed part of the issued claim. The defendant nevertheless addressed them and did not object to their determination at the renewal hearing. The judge dealt with them, making clear that there could be no further renewal of those grounds, subject to any appeal.
5. Article 8 and complaints. The complaints process had not been finally concluded, so any challenge to it was premature. In light of the availability of Family Court remedies, there was no reasonably arguable case that the local authority’s actions constituted a disproportionate interference with Article 8 rights.