GA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 12 April 2021 |
| Neutral Citation | [2021] EWHC 868 (Admin) |
| Date | 12 April 2021 |
| Docket Number | Case No: CO/328/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/328/2021
The Queen on the application of
Rachel Jones (instructed by Bindmans LLP) for the Claimants
Claire van Overdijk (instructed by Government Legal Department) for the Defendant
Hearing dates: 30 March and 7 April 2021
Approved Judgment
Introduction
The Claimants are all British citizens, who currently live abroad. By order of this Court, the First Claimant (“the mother”) is referred to as GA and the Second to Fifth Claimants (“the children”) as QA, RA, SA and ZA. The country where they live is referred to as Country X. The order also prevents publication of any information or document relating to these proceedings in such a manner as to identify any of the Claimants, either directly or indirectly. This judgment has been drafted so as to omit irrelevant details that might lead to such identification.
GA was born and brought up in the UK. She met a man from Country X. GA moved to that country, married him and they had three children, QA, RA and SA, who have lived in Country X since they were born. They are all under 16 years old. According to GA, the children's father has a history of drug abuse and mental health problems. He has subjected her to severe physical and emotional abuse. He has interrogated and beaten her, sometimes knocking her unconscious. He has burned her, repeatedly threatened to kill her and the children and, on occasion, been violent towards the children. There were criminal proceedings against the father in Country X. In the course of those proceedings, he admitted causing GA bodily harm and gave written permission, authenticated by the court, for the children to travel with their mother to visit her parents outside the country.
The Defendant is responsible for HM Passport Office (“HMPO”). In December 2019, GA applied to HMPO for passports for QA, RA and SA. She signed the box on the application form confirming that she had parental responsibility for them. In a handwritten note, she explained that the father had recently been arrested after “months of extremely serious physical and psychological abuse including torture of me – much of this witnessed by the children – when he isolated us”.
HMPO declined to process the application unless the consent of the father was obtained.
GA left Country X in January 2020, leaving QA, RA and SA in the care of their grandparents. She later came to the UK, where ZA was born.
HMPO issued a passport for ZA, but continued to refuse to do so for any of QA, RA or SA, unless the consent of the father was obtained. GA returned to Country X with ZA hoping to obtain that consent. It was refused. GA says that HMPO's stance forced her to return, with ZA, to her abuser, thereby exposing her and ZA to the risk of further violence from him. The father has still not given his consent for the passport applications.
The Secretary of State's position in these proceedings is as follows. A passport for a child can only be issued on the application of a person who in law has parental responsibility for the child. The law applicable to the attribution of parental responsibility is governed by the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague in 1996 (“the 1996 Hague Convention”). Under Article 16, the attribution of parental responsibility is governed by the law of the State of habitual residence, which in the case of QA, RA and SA is Country X. Under the law of Country X, the father has sole parental responsibility for QA, RA and SA. As the father has not given his consent, HMPO cannot process the applications for QA, RA and SA.
The Claimants challenge the decision (which they say is ongoing) not to process the applications on the following grounds:
(a) It was irrational and disproportionate, took into account irrelevant factors, failed to take into account relevant ones and was unreasoned.
(b) It was contrary to HMPO's guidance.
(c) It involved an unlawful fetter on the discretion to issue a passport.
(d) It was incompatible with the Claimants' rights to respect for private and family life (under Article 8 ECHR) and GA's right not to be discriminated against on grounds of sex (under Article 14, read with Article 8 ECHR).
(e) It was incompatible with the Secretary of State's duty under Articles 2, 3 and/or 8 to take reasonable steps to protect the Claimants' lives and to protect them from torture and inhuman and degrading treatment.
Procedural matters
The timing of the Acknowledgement of Service
The claim was filed on 28 January 2021, together with an application for urgent consideration. On 1 February 2021, Robin Knowles J ordered that the Claimants be anonymised and imposed reporting restrictions. He also abridged time for service of the Acknowledgement of Service (“AoS”) to 8 February 2021. On that date, the Secretary of State applied to extend time for service of the AoS until 22 February 2021. That application came before me on 16 February 2021. I refused it, noting that time had been abridged for good reason, and directed that the papers be placed before a judge later the same week. That happened and on 19 February 2021, in the absence of any AoS, Robin Knowles J granted permission and set an expedited timetable for the hearing. The detailed grounds and evidence were to be filed by 26 February 2021.
The importance of procedural rigour in judicial review has been repeatedly emphasised by the Court of Appeal: R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, [67]–[69] and R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, [116] et seq. This applies as much to defendants as to claimants. In the ordinary course, a defendant has 21 days from service of the claim form to file an AoS: CPR r. 54.8(2)(a). Directions abridging time for service of an AoS are made only where the documents filed by the claimant disclose a real need for expedition. Where such a direction is made, and a defendant considers that it should not have been made, or it will be impossible to comply with the shortened timetable, the proper course is to apply promptly for an extension of time, rather than leaving it to the last day. In any event, there must be no assumption that an extension will be granted. It may be refused. If it is, defendants who have not by that time filed an AoS should assume that they may well forgo the opportunity to advance arguments why permission should be refused.
Redactions
The hearing was set down for 30 March 2021. Just before midnight on 25 March 2021, almost exactly a month after the date by which the detailed grounds and evidence were due, the Secretary of State filed and served an application for permission to rely on a witness statement from Jonathan Wharton, an amended skeleton argument and redacted copies of the policy guidance previously disclosed. On 26 March 2021, the Claimants objected to the late admission of this evidence, noting that the significance of the new versions of the guidance had not been explained. I indicated that I would determine the application at the hearing.
At the start of the hearing on 30 March 2021 it became clear that the guidance documents originally disclosed were versions which omitted certain passages which the Secretary of State considered were exempt from disclosure under s. 31 of the Freedom of Information Act 2000 (“ FOIA”). But there was nothing on the face of the disclosed documents to indicate that such redactions had been made, or on what basis. Accordingly, the Secretary of State produced the same guidance documents, this time marked to show where redactions had been made.
Ms Claire van Overdijk, who represents the Secretary of State, said that it was usual for the Secretary of State to disclose in legal proceedings documents redacted to remove material exempt from disclosure under FOIA. She was unable to confirm: (a) who had made the redactions in this case; (b) whether the person who made the redactions was a lawyer instructed in these proceedings; and (c) whether the process involved consideration of anything other than the legal tests applicable under FOIA.
This meant that it was necessary for a statement to be filed to confirm the process undertaken. A statement was filed on 1 April 2021 by Liam Doyle, the solicitor with conduct of the litigation on behalf of the Secretary of State. In this statement, Mr Doyle indicated that the internal policies attached to the AoS were edited versions. The parts removed were judged to be exempt from disclosure under FOIA. Thereafter, Mr Doyle reviewed the unedited versions of the same policies and formed the view that the parts which had been removed were not relevant to the issues in the proceedings. Edited versions of the guidance notes were attached to the Detailed Grounds of Defence (“DGD”), served on 26 February 2021. The DGD said this at para. 21:
“Current restricted versions of this guidance were filed with the acknowledgement of service and are classified as ‘official sensitive’. The restrictions that have been applied to it are imposed pursuant to section 31(1) of the Freedom of Information Act 2000.”
I read this as advancing an explanation why the guidance had not been disclosed earlier (in response to requests in pre-action correspondence), rather than as indicating...
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Secretary of State for the Home Department v GA
...quashed HMPO's decision to refuse to process the applications for reasons given in a judgment dated 12 April 2021 and reported at [2021] EWHC 868 (Admin). The Secretary of State now 4 I am in no doubt that the appeal should be dismissed and that the Judge's decision is right for the reason......