XYM -v- Family Court at West London and another (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case number: CO/66/2023

In the High Court of Justice
King’s Bench Division
Administrative Court

18 May 2023

Before:

Deputy High Court Judge Clare Padley

Between:

The King on the application of
XYM

-v-

Family Court at West London

The Kingston Family Court

and

XTZ (Interested party)

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service (AOS) filed by the Defendant and/or Interested Party]
ORDER by Deputy High Court Judge Clare Padley

  1. The Claimant shall be referred to in these proceedings as “XYM”, and the Interested Party shall be referred to as “XTZ” and pursuant to CPR 39.2 there shall be no publication of the name or address of the Claimant or the Interested Party or any particulars of the case likely to lead to the identification of the Claimant or his family without the leave of the court.
  2. Pursuant to CPR Rule 5.4C:
    (a) A person who is not a party to the proceedings may obtain a copy of a claim form, judgment or order from the court records only if the same has been anonymised and redacted in accordance with paragraph 1 of this order
    (b) if a person who is not a party to the proceedings applies for permission to obtain a copy of any other document or communication, such application shall be on at least 7 days’ written notice to the Claimant
  3. Any person has liberty on three days’ written notice to the parties to apply to vary or discharge this order.
  4. The application for permission to apply for judicial review is refused.
  5. No order for costs.

Reasons

  1. The Claimant seeks permission to challenge “the decision of the circuit judge at West London to refuse permission to appeal, along with a number of associated matters including the JCIO’s refusal to investigate contrary to Article 3 of HRA 1998”.
  2. There are in fact two ‘permission to appeal’ decisions (‘the Decisions’) which appear to be the subject of the current claim for judicial review. Both decisions were made by His Honour Judge (HHJ) Willans on 7 September 2022 sitting in private at the Family Court at West London (the First Defendant). It appears that one or more of the decisions under appeal was made at the Second Defendant court.
  3. The Claimant is the father of two young children and the first Decision related to an application by the Claimant for permission to appeal against a decision made by District Judge Saunders following a factfinding hearing involving the Interested Party relating to the Claimant’s children. The Claimant accused the District Judge of sexism, hostility and bias.
  4. The second decision related to an application for permission to appeal by the Claimant against the decisions of District Judge Armstrong dated 6 July 2022 and Deputy District Judge Waschkuhn dated 20 April 2022, relating to the financial proceedings between the Claimant and the Interested Party.
  5. In both Decisions, HHJ Willans refused permission to appeal on all grounds. By virtue of section 54(4) of the Access to Justice Act 1999 there is no right of appeal against these decisions.
  6. In his claim form, the Claimant alleges a breach of Articles 3, 6 and 8 of the ECHR. In the statement of facts and grounds, the Claimant relies on four grounds of challenge, alleging various violation of Articles 6 and 1 of the ECHR. His grounds of challenge include a failure by the judge to provide his reasoning, a failure to direct a transcript of the earlier proceedings, a failure to explain why the financial proceedings could take place and finish before the child proceedings and a failure to investigate an alleged serious crime.
  7. In the claim form the Claimant also states that he seeks “approval of the attached EX105s and EX107s”. I note that EX107 is a form to request for transcription of Court proceedings and the EX105 is a form for the transcript to be provided at public expense.
  8. In line with the usual practice when the named Defendant is a court or tribunal, the Defendants have filed a joint AOS but not filed any summary grounds of defence.
  9. The scope of judicial review of County Court decisions is a narrow one. Whether applying the test in R (Sivasubramaniam) v Wandworth County Council [2002] EWHC (Admin) 1738 or the second appeals test in R(Cart) v Upper Tribunal [2012] 1 AC 663, it is a more stringent test than the usual test for permission to apply for judicial review, of the grounds being arguable and having a realistic prospect of success. Instead it is necessary to show that there has been some significant procedural error or irregularity resulting in unfairness and affecting the outcome in the case.
  10. On the basis of all the evidence provided by the Claimant, there is no basis for the Claimant’s primary contention that the County Court judge made a procedural error in failing to order a full transcript of the two previous hearings so as to cause him unfairness and affect the outcome in his case. In fact, it is recorded on the face of the two Orders made by HHJ Willans on 7 September 2022 that:
    “At the outset of the hearing the Court asked the appellant whether he wished to proceed with the hearing in the light of the fact he has an outstanding appeal against the previous case management order refusing him a transcript of full hearing at public expense and refusing a copy of an unapproved transcript of judgment. The appellant indicated he did wish to proceed. The Court indicated it would continue to keep this issue under review as to whether in the course of the appeal it became clear the appeal could not proceed without the above documents. The Court was ultimately satisfied a fair hearing could proceed in the absence of the same.”
  11. I also note that the Claimant was present during each of the hearings and heard the judges’ reasons and that the earlier court had approved provision of a transcript of the judgment (but not the full hearings). I also note that the Claimant had already appealed to the Court of Appeal in relation to the case management order about the transcripts.
  12. It is also plain that on the basis of all the material available to him that it was open to HHJ Willans to reach the decisions that he did. In those circumstances, the Claimant’s claim does not meet the threshold for a review of a County Court decision and permission is refused.
  13. I also note that the claim was received by the Administrative Court office on 27 December 2022, over 3 months after these Decisions on 7 September 2022. As it states clearly on the front of the claim form “A claim form must be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose: see CPR 54.5(1).“ I note that the Claimant claims that he first tried to submit a claim by email on 6 December 2002 but was asked to re-submit it but he did not do so prior to 27 December 2022. No extension of time application has been made and no explanation for the delay has been provided. In those circumstances, permission is also refused on the grounds that the claim was made out of time.
  14. I make no order in respect of the claim for approval of the transcript requests. No transcripts are needed for this claim and I note that the county court had already agreed to the provision of transcripts of the judgments only at public expense.
  15. I have not made any order for costs against the Claimant as the Defendants have not served a substantive AOS or made any application for costs.
  16. No application for an anonymity order has been made but the claim relates to private law family proceedings and the Claimant has two children who are referred to in the family court documentation. I consider that non-disclosure of the identity of the Claimant and the Interested Party are necessary to protect the identify of their children and for the proper administration of justice. I have therefore made an anonymity order of the court’s own motion, with provision for liberty to apply.