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The inability of the courts to provide a unified system of family justice is highlighted by Redcar and Cleveland Borough Council v Others (Re B)  EWCA Civ 964 (the problems it demonstrates will not be altered by the new family court (see Matrimonial and Family Proceedings Act 1984, ss 31A-31O)). Grandparents were willing to accommodate their grandchild, but considered that the local authority should pay them a foster allowance for so doing, on grounds that she was accommodated with them (CA 1989, s 20). The local authority disagreed and refused to pay.
The issue - whether the child was accommodated under s 20 - was tried by a district judge and, on appeal, by a circuit judge. Both agreed with the grandparents. It was only when the case arrived in the Court of Appeal that the court pointed out that the courts below had had no jurisdiction to deal with the application. What should have happened, said Black LJ, is that the grandparents should have challenged the refusal to pay a fostering allowance by judicial review. An alternative (though argument was not heard on the point) ‘may have been for an application to be made in the High Court under its inherent jurisdiction for a declaration that K is a looked after child' (para 6).
The judicial review application must be made in the QBD (Administrative Court): this cannot be combined with family proceedings. A declaration application can arguably be made in the Family Division as a form of originating application (discussed in Family Law Newswatch under CM v Exor of the Estate of EJ (deceased) and HM Coroner  EWHC 1680 (Fam), Cobb J; and, for the appropriateness of the declaration jurisdiction, see Rolls-Royce plc v Unite the Union  EWCA Civ 387); though that application may also have to be issued in the Administrative Court. Proceedings under CA 1989, Parts 1, 2, 4 and 5 are family proceedings for issue in the family court. Part 3 is administrative law. Nothing in the new family court will bridge that divide.
Having considered the jurisdiction of the courts to deal with the case, Black LJ went on to deal with the jurisdiction of the Court of Appeal to dispose of the case. She held that:
‘ ... the court has little more jurisdiction than the County Court did....; but when it comes to determining the issue between the parties over K's status, we can do no more than indicate what we would have been inclined to decide had we been seised of the substantive issues in the case.'
Unfortunately her ladyship does not seem to have been referred to Chief Adjudication Officer v Foster  QB 31,  3 WLR 473 (followed in Farley v Secretary of State for Work and Pensions  EWCA Civ 869) where, in very similar circumstances, the Court of Appeal had held that a Social Security Commissioner had no jurisdiction to make a finding as to the vires of particular regulations - Lord Donaldson MR held that the Court of Appeal could consider judicial review as follows (at 49-50):
‘This court has a curious quasi-original jurisdiction in relation to judicial review. If an application for leave to apply for judicial review is refused by the High Court, it can be renewed to this court and, if granted, the substantive application can be heard by this court, although the usual practice is to remit it to the High Court for hearing ... Accordingly a Lord Justice - even one hearing the primary appeal - could, sitting as a judge of the High Court, refuse leave to apply and thus clear the decks for this court to grant leave and add the substantive application for judicial review to the primary appeal, if this was the sensible and most cost-effective way of dealing with the matter.'
There may be other reasons - such as the need to hear oral evidence (which is unusual also in judicial review) - why the Court of Appeal could not deal with this particular case; but on the information available in the report the jurisdiction may have been available to the court, at least in principle.
However, had Black LJ been pressed to deal with the case in judicial review it may not have helped the grandparents very much. She took the view that CA 1989, s 20(7) prevented the court finding that the local authority could be said to be accommodating the child.
David Burrows, solicitor advocate, is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Judicial review and declarations are dealt with in Chapter 11.
The Red Book is the acknowledged authority on practice and procedure