BGE & Anor, R (on the application of) v Birmingham Children’s Trust

MRS JUSTICE JEFFORD:

1. At the commencement of this judgment I repeat again that the directions as to anonymity made by Eyre J stand and that this judgment is subject to those provisions. For that reason, I will refer, to the claimants, with no disrespect to them as individuals, as “the claimants”, and I will refer to “the children” or, in some instances, “the child” or “the child in question”, which is intended to be a reference to the eldest child of the claimants.

2. The claimants first made a claim for judicial review, for which they required permission, on 3 July 2025. They are the parents of four children and this claim concerns, in particular, the eldest child to whom I have already referred. All children were taken into care towards the end of 2023 and final care orders were made by the court on 15 November 2024. The children were placed in two foster placements, that is, two siblings in each of the placements, no doubt in the interests of keeping the siblings together.

3. From the end of 2024, the claimants raised safeguarding concerns, and on, I believe, 13 February 2025, they made an application for increased contact pursuant to section 34 of the Children Act 1989 , and to discharge the care orders pursuant to section 39 of that Act .

4. In March 2025, the defendant suspended all contact between parents and children. The claimants’ case was that the Local Authority ought to have done so under section 34(4) by application to the court, but had failed to do so.

5. On 6 June 2025, the claimants filed an urgent application for the reinstatement of contact and for the discharge of the care orders. On 30 June 2025, the child was removed from their existing foster placement to a new placement out of area. The child was, therefore, separated from the sibling with whom they had previously shared a placement. This claim for judicial review, it can be seen from that chronology, was made a few days after.

6. At the time the claim was made, there were, in summary - and I emphasise that this is intended to be a summary only - two main limbs to the application. One related to the conduct of the Local Authority in removing all contact from 25 March 2025 without lawful process under section 34(4) and the later change of placement. Collectively those were said to interfere disproportionately with Article 8 rights.

7. The second limb related to the failure to list the claimants’ application to reinstate contact and to discharge the care order under section 39 , and, for that reason, His Majesty’s Courts and Tribunal Service, as the relevant administrative body, was added as a defendant.

8. Included within those two principal grounds were issues relating to disclosure of materials by the Local Authority and matters which it was argued ought to be before the court and taken into consideration. Those grounds were reflected in the remedies sought, which were: • A mandatory order requiring HMCTS to list the 6 June application and requiring the Family Court to give directions in advance of a hearing already listed for 5 August 2025, those directions to include the disclosure that was sought. • An order prohibiting the Local Authority from making any further placement decisions without taking specified steps. • An injunction requiring the Local Authority to take certain steps in respect of sibling contact. • The quashing of the decision to suspend contact. • A declaration of breach of Article 6 and Article 8 rights.

9. Eyre J refused permission on those grounds on the papers. I do not repeat what he said about the claim against HMCTS. It was plainly right, and, in any case, a hearing was then listed for 22 July which resulted in reinstatement of contact by consent. Importantly, there was a further and final hearing relating to both contact and the discharge of the care orders on 11 September. As I understand it, an order was made continuing the care order, but that order has not been drawn up and sealed, although a draft is with the judge for approval. In any case, on the face of the application, the listing ground and the claim against HMCTS is not now pursued on renewal and there is no need to say any more about it.

10. So far as the hearing on 11 September is concerned, if there is to be any further challenge to the decisions made on that occasion, that is a matter for the Family Court and/or any appeal. In his skeleton argument, Mr Wilson drew the court’s attention to the fact that no appeal had been brought in time. However, it remains the case that if the claimants are unhappy with what happened before that, or has happened since then, they have remedies available to them by application to the Family Court. Those remedies include applications under section 34 in respect of contact and under section 39 to discharge the care orders which would encompass a challenge to the placement of the children. As Mr Wilson said, there is no specific provision for challenging a placement, but it falls within the purview of the court when considering the care order and any discharge application.

11. Turning then to this renewal application. Self-evidently, this application is listed as a renewal hearing, that is, an oral hearing renewing the application that was considered on the papers by Eyre J. The reality is that what the claimants now largely, albeit not entirely, seek to do is challenge further decisions which have been taken by the Local Authority since the hearing on 11 September.

12. They have argued this “renewed application” on four grounds. Ground 1 relates to a decision on 7 October to change the frequency of contact, downgrading it from fortnightly to monthly contact. Ground 2 relates to the child’s placement. Ground 3 alleges a failure to consider representations and the child’s voice, which similarly relates to the decision on 7 October, but also to the placement decision, and also encompasses issues of complaints’ handling and disclosure. Ground 4 is the alleged cumulative effect of the failings of the Local Authority, resulting in a breach of Article 8. Those are the four grounds that have been argued by the claimants clearly, both in writing prior to this hearing and orally, and I am grateful for the succinct and clear way in which those grounds were put before the court.

13. Whilst I recognise that the claimants act in person and may not be entirely familiar with court procedure, I do have to emphasise that what I am considering is, in part at least, a new case, and not a renewed application. In other words, where it relates to decisions made after the claim itself was made, it does not relate to the matters which were encompassed within the issued claim for judicial review and to which the defendant had had an opportunity to respond.

14. There is a procedural unfairness in that. However, the Local Authority has addressed the four grounds as now put forward, and says, in submissions, that there are straightforward answers to each of them, and the Local Authority does not object to my dealing with them on this renewed application. I will, therefore, deal with them, but I make this point to emphasise that it means that there cannot then be any further attempt to renew the application in that respect. In other words, this is an end to those grounds, subject to any appeal, and is not to be taken by the claimants as somehow equivalent to dealing with the matter on paper.

15. Turning then to the first three grounds. In my judgment, it is quite clear that grounds 1, 2, and 3 are all matters for the Family Court and not for judicial review by the Administrative Court. It is open to the claimants to make an application under section 34 in relation to contact or a renewed application under section 39 in relation to the care order, and, as I have already said, that would encompass any issues of the placement of the child. There is, therefore, an alternative remedy, and, indeed, a more appropriate remedy, available to the claimants and that in itself is a reason not to grant permission to bring a judicial review.

16. 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. As Eyre J said quite clearly, judicial review is the last resort.

17. In any event, as Mr Wilson submitted, all of the decisions before 11 September, including the placement decision, fell to be considered by the Family Court on that application to discharge the care order, and any subsequent decisions, in particular that to reduce contact, can be raised in the Family Court on the appropriate applications.

18. Particularly as far as ground 3 is concerned, this featured in the original claim as part of the claimants’ case that relevant safeguarding matters have not been taken into consideration or placed before the court. As I have indicated, this was part of the case on disclosure and that had led to complaints, together with complaints that safeguarding concerns were not properly taken into account. Those again were all matters for and remain matters for the Family Court. So far as safeguarding and consultation is concerned, they were matters that could have been relied on or could, on any future application, be relied on before the Family Court. Importantly, in those circumstances, the children would be, and, indeed, have been, represented.

19. As far as complaints specifically are concerned, the defendant’s position is that they have been dealt with properly and rationally. Also the complaints have not been finally dealt with because of the ongoing proceedings and there is, therefore, no decision to be challenged. I accept that submission that any challenge is premature.

20. It follows from my judgment in respect of grounds 1, 2, and 3 that I can see no arguable case that there has been a breach of Article 8 rights.

21. At the risk of repetition and to be quite clear, the court has been faced with a moving picture in terms of the grounds and the matters relied on. I have not recited at length what appears in the bundle, apparently as an extract from the statement of facts and grounds, but, in fact, as the new grounds 1 to 4. I have not addressed or recited the matters set out in the claimants’ skeleton argument, which listed a series of decisions, all except one or two of which have been taken subsequent to the hearing before the Family Court on 11 September and did not fall within the scope of the application for judicial review. The court has not been assisted by, and there is a degree of unfairness to the defendants in, facing this moving picture.

22. However, the claim has now been succinctly argued on four grounds, and I refuse permission on each of these grounds for the reasons given. In summary, the decisions are either 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. Accordingly, this renewed application is dismissed. (There followed further submissions)

23. I cannot see any reason why the claimants on an unsuccessful and wide-ranging application, which has suffered from the issues that I have raised about a moving picture, should not make a contribution towards the defendant’s costs. Taking a broad brush approach, I will make an order for the payment of £1,000 by way of the defendant’s costs. That sum to be paid by the claimants within 28 days of today’s date. --------------- This transcript has been approved by the Judge