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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of C [2011] JCA 189 (29 September 2011) URL: http://www.bailii.org/je/cases/UR/2011/2011_189.html Cite as: [2011] JCA 189 |
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Before : |
The Hon Michael J. Beloff, Q.C, President; Dame Heather Steel, DBE, Michael S. Jones, Q.C. |
IN THE MATTER OF C
AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY MRS L
Mrs L appeared in person.
judgment
The president:
Introduction
1. This is an appeal against a refusal by the Bailiff dated 5th August, 2011 ("the refusal") of an application by Mrs L for leave to apply for judicial review, based on her amended application and supporting affidavit dated 20th May 2011.
2. The application relates to what Mrs L contends was the unlawful removal and detention ("the detention") of her children C (then aged 12) and A (then aged 7) in 2008 by the Children's Service on behalf of the Minister of Health and Social Services ("the Minister"). She seeks a declaration that the detention was unlawful and also seeks damages for a breach of her rights under Article 8 of the European Convention on Human Rights. There is no doubt that, if her factual allegations are correct, she has suffered a significant wrong.
Background
3. On 2nd April, 2008, Mrs L's husband, who was the stepfather of C and A, went to collect C from Scouts. As a result of allegations made by C against his stepfather of deliberately hitting him apparently by way of disciplinary action for C's unacceptable behaviour towards a Muslim girl, C and A were taken into police protection.
4. On 10th April, 2008, A was returned home but C has been in care ever since.
5. Mr L was charged with an offence against Article 35 of the Children (Jersey) Law 2002 and convicted on 18th September, 2008, the Magistrate having rejected Mr L's defence that he was administering reasonable corporal punishment to C.
6. On 12th September, 2008, the Royal Court granted the Minister an interim care order in respect of C. C remained with carers. On 14th October, 2009, following a contested hearing, the Royal Court made a full care order in respect of C in favour of the Minister (In the matter of C [2009] JRC 200).
7. On 18th November, 2009, S-v-AG [2009] JRC 226, the Royal Court allowed Mr L's appeal against his conviction on the basis that there had been a mis-transcription of the police interview which may have misled the Magistrate. A re-trial was authorised but the prosecution did not proceed with the case.
8. On 22nd March, 2010, the Court of Appeal dismissed Mrs L's appeal against the decision of the Royal Court to grant a full care order (In the matter of C [2010] JCA 063). Subsequently the Judicial Committee of the Privy Council refused leave to appeal referring, however, to "certain criticisms which could be made of the actions of the Children's Service". In consequence Mrs L has undoubtedly exhausted her remedies in respect of the making of the care order.
9. Mrs L's application raises the issue of the legality of the actions of the Minister (through the Children's Service) for the period between 6th April and 12th September, 2008. She accepts that Article 41 of the Children (Jersey) Law 2002 ("the 2002 Law") entitles the police to take a child into police protection for up to 72 hours, so that the removal of the children until 6th April, 2008, was lawful. She also accepts that C's removal was lawful from 12th September, 2008, (when the interim care order was granted by the Court) onwards. However, she says that there was no lawful authority for the Children's Service to have withheld C from her care between the expiry of the 72 hours and the making of the interim care order, and there was similarly no authority for them to detain A for the period from the expiry of the 72 hours until he was returned to her on 10th April, 2008, ("the interim periods"). She asserts that she is a victim of the unlawful detention of the children during the respective interim periods, which was in the language of her application, "an unnecessary and disproportionate interference in the rights to respect for family life."(para 6).
10. This application is the sequel to an application for leave to apply for judicial review previously made to and rejected by W. J. Bailhache, Deputy Bailiff in November 2010. The basis of the previous application too was that the same detention was unlawful and a violation of Mrs L's human rights (Judgment para 3). Indeed in her present application Mrs L says with commendable candour that it is made on "wider grounds than the previous application" recognising that the core of both is the self-same allegation. It is obvious that a person refused leave by the Royal Court to apply for judicial review of particular administrative action can pursue the application by way of appeal before this Court (see by way of recent precedent Stuart Syvret-v-AG and Connétable of Grouville [2011] JCA 146 ("Syvret") (para 2)). What such person cannot do is to renew the application at first instance on the same grounds (Syvret para 25 (v)). Such would be an abuse of process.
11. In this instance, however, that argument cannot be used against Mrs L. Mrs L asserted after the hearing in November 2010 that the Deputy Bailiff was conflicted because of his formal involvement in the prosecution of Mr L. The Deputy Bailiff denied that there was any such conflict and I consider that he was correct to do so. Nonetheless he very fairly ordered both that the application be placed before another judge and that the fact that there had been a refusal should not be disclosed to the new judge. Nor in the event was it; the Bailiff's judgment explaining the refusal contains no reference to it.
12. Mrs L had also at the same time enquired about the procedure for filing an Order of Justice; and utilised the advice she received from the greffier to do so. She issued proceedings by way of Order of Justice against the Minister and the States Employment Board ("the Board") on the basis that they were both liable for the allegedly unlawful actions of the Children's Service. As originally framed, the Order of Justice sought damages and declaratory relief for breach of her human rights, for breaches of the Children's (Jersey) Law 2002 and for misfeasance and misconduct in public office; it was in short a claim in tort. When the matter came before the Court for the first time on 1st July, 2011, counsel for the Minister and the Board asked for the matter to be adjourned so that Mrs L could amend her pleadings so as to comply with the requirements of Rule 9A of the Royal Court Rules insofar as concerned her claim under The Human Rights (Jersey) Law 2000 ("the Human Rights Law"). The Commissioner suggested that Mrs L might instead abandon her Human Rights claims so as to concentrate on her remaining claims, and she did so. The Bailiff, however, has granted her leave to amend her Order of Justice in order to re-instate the Human Rights claim so that, subject to the Royal Court extending the time to bring that claim, all her claims can be considered in the one set of proceedings with the Court having the advantage of hearing all relevant evidence at one and the same time.
Decision
13. During the hearing, the Bailiff put to Mrs L that she could not bring both sets of proceedings when they both arose out of essentially the same facts. She would have to choose one or the other. She replied that she wished to continue with the Order of Justice in its amended form but to proceed with her Human Rights claim in judicial review proceedings. She referred to the fact that Article 8(3) of the Human Rights Law required proceedings under that Law to be brought within one year of the date on which the act complained of took place. She was therefore out of time. The problem that faces her, however, is that in terms of judicial review she is even more out of time, three months being the standard (see further Syvret para 25).
14. The foundation of Mrs L's claim in tort is located in paragraph 2 of her amended Order of Justice. "The two defendants have each in their official, public and/or statutory roles done wrongs to the Plaintiff which are unlawful" a proposition elaborated in paras 16-21 which capture her complaint as summarised in paragraph 9 above of this judgment. To establish that illegality will be a necessary though not a sufficient precondition for obtaining the remedies she seeks. I for my part am satisfied that a court seized of the Order of Justice would have to decide whether, and if so by authority of what law, customary or statute, the detention complained of was justified. Therefore, the Order of Justice would be as effective a means of investigating the actions of the Children's Service which Mrs L desires as the application for judicial review.
15. We do not at present know how the Children's Service will seek to justify their actions. The Bailiff said that they will rely on consent (para 11 of his judgment). Mrs L suggests that there was no material before him by reference to which he could make that statement. It suffices to say that if the Children's Service have explained their position in Court proceedings or correspondence (which they may well have done) this Court has not seen the relevant material. It is, however, noteworthy that in other proceedings before the Royal Court in respect of the Minister's application for a care order for C ([2009] JRC 200) the Court commented that the arrangements at an early stage of the interim periods were (para14) and later quotes an email from Mrs L of 19 June, 2008, (again during the interim period) sent to, inter alia, the Minister, withholding her permission for the then arrangements for the children. In my view these are facts worthy of investigation.
16. The Bailiff expressed himself:-
I respectfully agree.
17. The Bailiff continued:-
I also respectfully agree.
18. Finally the Bailiff said:-
With that, too, and with equal respect as already indicated I agree.
19. For these reasons, like the Bailiff, I would therefore refuse Mrs L leave to apply for judicial review on the grounds that she has an alternative remedy, namely proceedings by way of Order of Justice, and that those are the more appropriate form of proceedings to deal with the particular claims which she is bringing, because of the disputed facts. I am also not persuaded that she has provided cogent reasons for the Court to extend the standard time period for the bringing of judicial review proceedings. She was aware of the facts said to illustrate the illegality at the time they occurred. Her involvement in other proceedings (the prosecution of her husband, her objection to the Care Orders, what she calls in her application "complaints procedures") may explain but cannot excuse a delay measured in this instance in years, not months.
20. I want to make it clear that I say nothing about the merits of her claim for damages. Issues will arise, inter alia, as to whether or not in law the defendants owed her a duty of care and, if so what kind: see discussion in Wade: Administrative Law 10th ed ("Wade") pp. 655-656, and as to whether the facts justify a claim for misfeasance in public office (see Wade: 670-1) as well as to whether the time period for her Human Rights claim, if resurrected, should be extended. Her tort claim would not appear to fall foul of prescription period Law Reform (Miscellaneous Provisions)(Jersey) Law 1960, Article 2 and her claim for declaratory relief is free standing of her claim for damages.
21. I would add only that there are some procedural matters of general importance raised by this application.
First, although the Bailiff for reasons peculiar to this matter stated that Mrs L is (para 17), I am of the view that, in general, proceedings in which it is sought simply and solely to challenge the decisions or actions of public authorities should be brought by way of judicial review for two main reasons:-
(i) the need to obtain leave to apply, which acts as a salutary filter;
(ii) the strict time limits (albeit capable of being extended).
As Lord Diplock said in O'Reilly-v-Mackman 1983 2 AC 237, at p 285:-
See also Judicial Review Rules 16(1).
22. While the rule of procedural exclusivity laid down in O'Reilly-v-Mackman, a signal exercise of judicial law making, would be best avoided in Jersey as the slow retreat from it beat by the English Courts over the next decades illustrates (see Wade pp 566-561) any blatant effort by an applicant to avoid the time limit for judicial review or need to obtain leave by use of the Order of Justice should be carefully scrutinised by the Courts and, if appropriate on the facts, categorised as abuse of process and not allowed to proceed.
23. Second, anyone who proposes to apply for judicial review should preferably send a letter before action; (what in England and Wales is described as a pre-action protocol letter ) which indicates the basis of the claim and the relief sought (unless of course urgent relief is required); and the putative respondent should (if the matter is not promptly settled) indicate the nature of any proposed defence, so that the Court is in the best position to judge as to whether permission should be granted at all, whether the matter should proceed by way of judicial review or Order of Justice, and what ancillary directions are required. Consideration should be given to promulgating an appropriate protocol or practice direction to this effect.
24. Mrs L has conducted her case with exemplary courtesy and restraint. Nonetheless it is clear to us that she would be greatly assisted for the future by professional advice. If she cannot afford to employ a lawyer and is ineligible for legal aid, it may be that the Bâtonnier could arrange for provision to her of pro bono assistance in the best traditions of the Bar.
25. The appeal against the refusal of leave to apply for judicial review is therefore dismissed.
26. Dame Heather Steel JA - I agree.
27. Michael Jones QC JA - I also agree.
