Ways to bring public bodies to account.
Public law remedy
- For an example of a case where parents were awarded damages after bringing a successful action in judicial review; see the case of AB and AD v The London Borough of Haringey in 2012.
- For more information about judicial review, see the Public Law Project.
- There is a helpful guide to applications for judicial review on the www.justice.gov.uk site.
- See this article by David Burrows Judicial Review and How it Works
‘Public law’ is that body of law which governs the operation of public bodies, such as local authorities. This contrasts with ‘private law’ which is the law governing activities between individuals.
Thus care proceedings are ‘public law proceedings’ because they involve an application by a public body, the local authority. But disputes between parents over where their child should live are called ‘private law proceedings’ because no public body is involved.
A remedy in public law is ‘judicial review’ (JR). You can apply to the court to ask that a public body, such as local authority is forced to do or to stop doing something because they are acting unlawfully, by being unreasonable or irrational.
It is defined under the Civil Procedure Rule 54.1(2)(a) as a claim to review the lawfulness of –
- an enactment; or
- a decision, action or failure to act in relation to the exercise of a public function.
There is a two stage process in applying for JR. At the first stage you will seek the court’s permission to make the application. Many applications will fall at this hurdle. If you get permission your application then goes before a judge who will hear arguments and decide what order, if any, to make.
Grounds of Judicial Review
There may well be some overlap between these grounds.
- llegality or unlawfulness – a failure to act within the law. Did the decision maker understand the law they were applying? Did the decision making apply the correct law? Did the decision maker fail to take into account relevant issues?
- Irrationality – did the decision maker reach a decision so unreasonable that no reasonable decision maker could have made the same decision?
- Procedural impropriety – did the decision maker act fairly? Was the decision maker biased?
Limitations of JR as a means of righting wrongs.
The first difficulties are practical ones:
- JR is considered a remedy of ‘last resort’ – you will be expected to have tried other avenues to resolve your problems first and your application will not succeed if the court thinks you have failed to do this.
- The time limits for making an application are very short and very strict. See CPR Part 54.5(1). You must make your application for permission to apply for judicial review promptly and in any event not later than 3 months after the grounds upon which the claim is based first arose.
JR is also not about ‘righting wrongs’ but is a way the judges check that the decision making process was fair. So the judge will not be examining the merits of any particular decision by a public body, but only if they acted in accordance with the law.
Therefore, even if you are successful in your application for JR this is not a guarantee that the LA will ultimately make a different decision in your case – only that the court will tell them they need to think again.
- You can get a declaration that a public body has acted unlawfully or an injunction to stop them from acting unlawfully.
- A claim for judicial review may include a claim for damages, restitution, or the recovery of a sum due, see CPR 54.3(2).
Damages as a remedy
There is no right in judicial review to claim damages for losses caused by unlawful actions of a public body. It is only possible to receive damages in judicial review claims if there is another established cause of action such as breach of statutory duty, misfeasance in public office or a private action in tort. We shall look at these in more detail below.
See section 31(4) of the Senior Courts Act 1981
You cannot use JR to try to prevent a LA issuing care proceedings
An important point to note is that parents cannot try to stop either EPO or care proceedings by making an application for JR – see the case of R v Gloucestershire CC  heard by Munby J (as he then was).
- JR Is a remedy of last resort and it should not be used when there is another effective and convenient remedy available – i.e. contesting the care proceedings in the family court;
- JR is a blunt and unsatisfactory tool when the matters in issue are as sensitive and as difficult as they usually are in care proceedings;
- the greatest possible caution is called for when the purpose of JR is to restrain the commencement of proper proceedings in a domestic court which has jurisdiction.
- The family court should never feel inhibited from acting urgently to protect the interests of children.
But there are limited circumstances where you can apply for JR when care proceedings are ongoing
See the case of H, R (on the application of) v Kingston Upon Hull City Council  EWHC 388. It is possible, but it will be rare:
There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.
I may be turning into a conspiracy theorist, or I may just be desperate. When a case is heard on papers at the Court of Appeal the applicant is not given the name of the judge nor is it placed on the case tracker until the judgement is given. If the applicant then may have reasonable grounds to believe that the judge should have recused themselves due to connections with the judge whose judgement they are reconsidering could this be grounds for judicial review ? Or am I talking complete rubbish as Judges always know each other. I did wonder though whether not knowing who the judge is could be completely compatible with Article 6 human rights as if there was a conflict of interests how could anyone know until after the judgement and it’s too late then Bring on the robots, then we can all have a fair trial !
I suspect the judges at various levels so know each other, there aren’t that many of them, but they do regularly review the decisions of other judges. It isn’t grounds for recusal.
Most judges do know each other and often meet regularly as part of an accepted support system. Often they will know each other socially as well. This isn’t grounds for recusal I think. You would have to show that the relationship went beyond mere professional courtesy – for e.g. if two Judges were married, I would worry about that, but not necessarily if they played golf together once a month! Its not possible to ‘advise’ without knowing exactly what is going on but the judicial world is relatively small and most of them will know each other fairly well, particularly at the higher level.
What was the application?
Was it an application for leave to appeal or a full-blown appeal?
You know i’m not a lawyer,Sam, so you will have to wait for Sarah’s advice.
I don’t know about judicial reviews but i think that only applications for leave to appeal are heard on a reading of the papers by a single Judge. I suppose he may well be a pal of the lower court judge and that should not affect his judgmenmt.
If the applicant is refused permission and is not happy, then he or she is supposed to apply for an oral hearing which is granted more or less automatically. The oral hearing will be before 3 judges, i believe, so if one knows the lower court judge ,any bias he may have will be outweighed by the other two. It’s unlikely all three will know him.
Then,of course, the full blown appeal if granted will again be before three judges.From what i’ve gleaned on various forums ,its often the case that applications are refused at first reading so most applicants have the application for an oral hearing pre-prepared.
But surely, with your experience surely you must already have known this.
I’ve no idea about judicial reviews except what is written in the post above.
Sarah will tell you.
Is it your case or someone else’s?