Judicial Review: A powerful weapon in the arsenal of family solicitors

Some would argue that public law and family law are about as far removed from each other as you can get, with family law being consumed with factual based arguments, and judicial review proceedings, for the most part, solely concerning themselves with legal argument.

That said, in my view, not knowing about judicial review results in the loss of a powerful weapon in a family lawyer’s arsenal. There are many circumstances that can arise where judicial review is appropriate when the Family Court cannot assist. Not having a knowledge of judicial review practice means family solicitors risk missing these opportunities for interesting work, as well as risking not advising properly on routes of redress open to their clients.

So, what exactly is judicial review?

Judicial review is a process of litigation brought in the Administrative Court, part of the Queen’s Bench Division of the High Court, that enables individuals, associations or organisations to challenge the lawfulness of decisions made by public bodies, and others exercising public functions. For family lawyers, it is worth noting that this includes decisions made by Children’s Services Departments of local authorities, as well as schools and colleges.

Upon making an application for judicial review (discussed further below) the court has the power to quash a public bodies decision through a Quashing Order (i.e. set aside what the public body has decided), to order the public body to do, or not do, something via Mandatory or Prohibitory Orders, to order Injunctions and Declarations (including those of incompatibility with the Human Rights Act 1998), as well as award damages in extremely rare circumstances.

The process is governed by Part 54 of the Civil Procedure Rules which prescribes a modified version of the, perhaps more familiar, Part 8 litigation process. Of importance to note is that judicial review is a remedy of last resort and cannot be brought where the complainant has a suitable alternative remedy elsewhere. It is not uncommon for parties to have arguments over whether or not alternative remedies are indeed suitable.

When can judicial review be contemplated in family proceedings?

Family lawyers may encounter a vast array of situations in which judicial review may be an appropriate option or, at least, an option that needs to be advised upon. The following is a non-exhaustive list of potential scenarios giving rise to judicial review challenges:

-         A failure to provide Special Guardianship Support Services contrary to section 14F of the Children Act 1989 (“the 1989 Act”);

 -         A refusal to pay financial support to Special Guardians under Part 2 of the Special Guardianship Regulations 2005/1109 (“the 2005 Regulations”);

 -         A refusal to assess for and/or issue a Special Guardianship Support Plan under Part 3 of the 2005 Regulations;

 -         A refusal to review, or to amend following review, a Special Guardianship Support Plan under Part 4 of the 2005 Regulations;

 -         A failure to provide services for a child in need under section 17 of the 1989 Act;

 -         A failure to undertake a young carer needs assessment, or a parent carer needs assessment, under sections 17ZA and 17ZD of the 1989 Act;

 -         A refusal to provide accommodation pursuant to section 20 of the 1989 Act;

 -         The way in which section 20 accommodation is to be provided;

 -         A refusal to pay fostering allowance;

 -         Various circumstances arising under Part 3 of the Children and Families Act 2014 regarding education for children with special educational needs.

Such matters can often be resolved through judicial review pre action proceedings whereas applications to the Family Court would take much longer and, in any event, risks the Family Court refusing jurisdiction.

Grounds for judicial review proceedings

Before considering a set of facts that may give rise to a public law challenge, one first needs to understand what the potential grounds for a judicial review challenge are.

The traditional tripartite separation of judicial review grounds is that of (i) illegality, (ii) irrationality and (iii) procedural impropriety.

Illegality concerns itself with whether the decision taken by the public body was legal in all the circumstances. It includes considering whether:

-         The decision that was taken was within the public body’s vires i.e. if it had the legal authority to take the decision that it took;

-         The public body misapplied and/or misunderstood the law it had to apply;

-         A discretionary power was exercised for an extraneous purpose;

-         The public body took into account irrelevant considerations and/or failed to take relevant considerations into account;

-         The decision was unlawfully delegated.

The exercise of considering whether the decision taken was lawful, generally involves an exercise in statutory construction, in order to identify precisely, with reference to the relevant legislation, the extent, nature and scope of the relevant vires and discretionary considerations. This task will often involve consideration of statute, as well as the relevant guidance issued by the government department to which the decision relates.

In family law scenarios, this could include (by way of extreme examples), a local authority delegating the securing of suitable alternative accommodation to a third party family member rather than its Children’s Services department or, alternatively, a social worker failing to take into account the impact of a child’s special educational needs when undertaking a section 17 assessment.

Irrationality or, as it is otherwise known, unreasonableness, is the consideration arising from the decision in Associated Provincial Picture Houses v Wednesbury Corporation [1984] 1 KB 223, namely, whether the decision that was taken was so unreasonable that no reasonable decision maker appraised of all the facts could have taken it. This is a high threshold to meet.

In considering whether a decision was unreasonable, the following are good starting points:

-         Whether the decision was proportionate in all the circumstances;

-         Whether there has been some defect in the process to arrive at the decision, or the manner in which the decision has been justified evidentially or logically;

-         The balancing exercise undertaken by the decision maker in determining the weight to be attached to each relevant consideration;

-         Whether the decision is unduly oppressive by virtue of inflicting an unnecessary burden to the complainant or infringing upon his rights.

Practical examples of potentially irrational decisions are where a local authority determines not to provide Special Guardian Support Services, despite the complainant and their evidence all explicitly recommending that support services are required.

Procedural impropriety concerns the method in which the decision was arrived at. It is distinguishable from irrationality on the basis that it concerns itself with the objective standards of procedural fairness and whether they were properly applied within the decision making process as opposed to the actual decision itself. Examples of procedural impropriety include:

-         Decisions being taken by apparently biased decision makers;

-         A failure to provide adequate reasons for a decision;

-         Where a decision maker fetters its discretion by rigidly confining itself to certain requirements.

In family law proceedings, procedural impropriety could occur where a local authority fails to provide reasons in refusing to provide foster payments to a section 20 carer.

How do I go about bringing a judicial review? Are there time limits?

Where one wishes to embark upon a judicial review claim, the general rule is that the claim must be issued “promptly and in any event within 3 months of the date of the decision”. The onus is on the word promptly. Any unnecessary delay on the part of the complainant or their lawyers could result in the court refusing to consider the claim.

Once you have confirmed that you are within time to issue a claim, the issue of suitable alternative remedy needs to be considered. Local authorities in particular have a realm of internal complaints processes that can be utilised in order to try and resolve complaints. These will not be suitable alternative remedies to judicial review if the potential judicial review challenge concerns an urgent issue, due to the length of time internal local authority complaint processes can take to resolve.

Once grounds have been established, it should be considered whether the decision would have been different but for the ground relied upon. If the decision would have been the same, the court may refuse to grant a remedy (remedies in judicial review are discretionary), even if you succeed in your legal argument.

If, having taken advice and satisfying yourself that there are grounds for judicial review, you wish to proceed, a letter before claim needs to be sent in accordance with the Pre Action Protocol for Judicial Review and the intended defendant given 14 days to respond. If that fails to resolve the matter:

-         A Form N461 (Judicial Review Claim Form) requires completion;

-         A Statement of Facts and Grounds needs to be drawn up outlining the facts and grounds of challenge, alongside the remedy sought;

-         Any additional forms that are required (such as Form N463 urgent consideration) need to be completed;

-         All the evidence relied upon, including witness evidence, must be compiled;

-         Statutory materials relied upon must be collated.

The above will then need to be filed with the court alongside a payment of the relevant court fee (at the time of writing it is ￡154).

Following issue, the claim will need to be served on the Defendant and a Certificate of Service returned to the court.

The Defendant has 21 days from the date of service of the claim to file an Acknowledgement of Service alongside Summary Grounds of Resistance, if it intends to defend the claim.

Once the court has received the Acknowledgement of Service, it will consider whether the claimant should be granted permission to proceed with a claim for judicial review. The test is whether the claim is “arguable”.

There are three potential outcomes to the permission consideration:

-         Permission is refused. If this is the case an oral permission hearing can be requested to renew the application;

-         Permission is refused as totally without merit. Certifying the claim as totally without merit prevents the claimant from being able to seek an oral renewal hearing. The only recourse is to the Court of Appeal.

-         Permission is granted, in which case the court will issue directions for the defendant to file Detailed Grounds of Resistance, for both parties to file further evidence and for an oral hearing.

Importantly, a claimant that successfully clears the permission stage must pay an additional court hearing fee (at the time of writing ￡770) within 7 days of the grant of permission, otherwise they risk the claim being struck out.

After complying with the court directions, skeleton arguments and a hearing bundle will need to be filed in advance of the final hearing.

Conclusion

The above is a very brief overview of judicial review procedure, as well as the initial considerations for whether there are grounds for a judicial review claim. It is designed to give family practitioners the basic knowledge that they need in order to consider whether such a claim might be appropriate in relation to cases that are involved in.

For further reading I would recommend both De Smith on Judicial Review and Michael Fordham’s Judicial Review Handbook.

For any specific queries then please do not hesitate to get in touch.