Judicial Review: Lawfulness of Public Function Decisions

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According to Civil Procedure Rule 54.1, a claim for judicial review is 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. But as the Supreme Court made clear on 16 October 2024 in Re an application by Noeleen McAleenon for Judicial Review (Northern Ireland) [2024] UKSC 31 (at paragraph 50): ‘The forms of relief available in a claim for judicial review are discretionary…’ Moreover: ‘A court may refuse to grant leave to apply for judicial review or refuse a remedy at the substantive hearing if a suitable alternative remedy exists but the claimant has failed to use it.’ For: ‘As stated in R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners [2017] EWCA Civ 1716…“judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective”.’  So if: ‘…other means of redress are conveniently and effectively available, they ought ordinarily to be used before resort to judicial review’.

Nicholas Dobson

This principle was illustrated in the Administrative Court on 22 October 2025 before Mrs Justice Jefford (pictured) in a claim against Birmingham Children’s Trust cited as [2025] EWHC 3451. The matter concerned four children, subject to final care orders made in November 2024, who had been placed in two foster placements, two in each. The claimants had raised safeguarding concerns. In February 2025, they applied under section 34 of the Children Act 1989 (parental contact etc with children in care) for increased contact and under section 39 of that act (discharge and variation of care orders), to discharge the care orders. In March 2025, the defendant subsequently suspended all contact between parents and children. On 6 June 2025, the claimants filed an urgent application for the reinstatement of contact and discharge of the care orders.

After the eldest child was moved out of the area, the claimants also, on 3 July 2025, sought judicial review permission. The claim included: an order preventing the authority making further placement decisions without taking specified steps; an injunction requiring the authority to take certain steps regarding sibling contact; the quashing of the decision to suspend contact; and a declaration of breach of rights under articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights. However, Eyre J refused permission on the papers.

On 11 September 2025, there was a further and final hearing concerning contact and care order discharge. An order was made continuing the care order (albeit not yet drawn and sealed at the time of the hearing before Jefford J, the draft order being with the judge for approval). Jefford J said that if there was to be any further challenge to the decisions made on that occasion, then that was a matter for the family court and/or any appeal. She indicated that, although the instant application was listed as a renewal hearing of the oral hearing before Eyre J on the papers, the reality is that the claimants were substantially seeking to challenge further decisions by the authority since the 11 September hearing. Their ‘renewal application’ grounds included: (i) change to frequency of contact which had been downgraded from fortnightly to monthly; (ii) placement of the eldest child; (iii) alleged failure to consider representations and the voice of the eldest child together with complaints about the placement decision; and (iv) alleged cumulative authority failings resulting in a breach of article 8. As Jefford J indicated, where these relate to decisions made after the judicial review claim, it is ‘in part at least, a new case, and not a renewed application’.

In the court’s view, the first three grounds were all matters for the family court and not judicial review. It was open to the claimants to make an application under section 34 regarding contact and section 39 for the care order which would encompass any child placement issues. There was, therefore, a more appropriate alternative remedy available to the claimants. Jefford J stated clearly that: ‘It is not the function of the administrative court or a judicial review to usurp the role of the family court or to give directions on procedural conduct by the local authority. It is only the function of this court to address whether a decision is lawful, unlawful or irrational. However, this court will not do so where there is an alternative remedy available to the claimants.’

And, as Eyre J had clearly said, ‘judicial review is the last resort’. Jefford J said that the claim, having been succinctly argued on four grounds, she refused permission on each. In summary, because: ‘The decisions are… not the subject of the claim for judicial review, the remedy lies in the family courts, the orders sought from this court are beyond its jurisdiction, and it is not reasonably arguable that the local authority’s actions have amounted to a disproportionate interference with article 8 rights.’ The application was therefore dismissed.

However, Jefford J also noted that the court had been ‘faced with a moving picture in terms of the grounds and the matters relied on’ in an unsuccessful and wide-ranging application. She therefore made an order for payment by the claimants within 28 days of £1,000 towards the defendant’s costs.

Nicholas Dobson writes on local government, public law and governance

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