Sookhan v The Children's Authority of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens |
| Judgment Date | 01 November 2021 |
| Neutral Citation | [2021] UKPC 29 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0063 of 2021 |
[2021] UKPC 29
Lord Briggs
Lady Arden
Lord Stephens
Privy Council Appeal No 0063 of 2021
From the Court of Appeal of the Republic of Trinidad and Tobago
Michaelmas Term
Appellant
Ravi Heffes-Doon
(Instructed by The Children's Authority of Trinidad and Tobago)
Respondent
Farai Hove Masaisai
(Instructed by Hove & Associates (Trinidad and Tobago))
Prospective Adopters (written submissions only)
Ebony Young
(Instructed by Janet Peters & Associates)
This appeal concerns an application by Ms Ena Sookhan (“the respondent”) for leave to apply for judicial review in respect of either a failure by the Children's Authority of Trinidad and Tobago (“the appellant”) to consider or alternatively a positive decision of the appellant not to consider, the respondent's application dated 24 November 2016 to be placed on the list of suitable persons for the adoption of children. By her application the respondent also applied to adopt a particular child, whom the Board anonymises as AB. On 15 July 2020, with written reasons given on 7 August 2020, Jacqueline Wilson J dismissed that application. In a short ruling delivered ex tempore on 10 August 2020, the Court of Appeal (Gregory Smith and Mark Mohammed JJA) allowed the respondent's appeal granting her leave to apply. On 25 September 2020 the Court of Appeal (G Smith, C Pemberton and R Boodoosingh JJA) granted the appellant conditional leave to appeal to the Board, and on 21 April 2021 the same panel of the Court of Appeal granted the appellant final leave to appeal, pursuant to which it appealed to the Board.
The threshold for the grant of leave to apply for judicial review is low. The Board is concerned only to examine whether the respondent has an arguable ground for judicial review that has a realistic prospect of success and is not subject to a discretionary bar such as delay or an alternative remedy: see governing principle (4) identified in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780, para 14.
The Board acknowledges and commends the sensible and practical approach taken by the parties in relation to the discretionary bar of delay. The appellant had argued that the respondent should be refused leave to apply for judicial review as her application was delayed. The appellant argued that this delay caused substantial hardship to AB and to his prospective adopters. Following the Court of Appeal's grant of leave to bring judicial review, the family judge with care of AB's placement and adoption stayed the prospective adopters' adoption application pending the outcome of the judicial review proceedings. The appellant argued that this caused AB and the prospective adopters significant distress and threatened to jeopardise AB's successful placement and adoption. At the start of the hearing, the Board asked the respondent whether she maintained her request for an order requiring the appellant to consider her application to adopt AB specifically, in addition to an order requiring the appellant to consider her application to be placed on the list of suitable adopters for the adoption of any eligible child. In response, the respondent withdrew her request for an order requiring the appellant to consider her application to adopt AB, such that any judicial review proceedings brought by her would not impede the adoption of AB by his prospective adopters. The appellant accepted that this amendment meant that there was no hardship to AB or the prospective adopters. Accordingly, the appellant no longer suggests that the appeal should be allowed based on the discretionary bar of delay. The Board observes that this practical approach by the parties has the effect of substantially narrowing the issues before the Board in this appeal, and also is likely to affect AB's adoption proceedings in the Family Court. The Board requests that the family judge be provided with a copy of this judgment.
In assessing when an appellate court should interfere with a grant of leave to apply for judicial review, it is instructive to consider existing authority outlining the basis on which an ex parte order granting leave should be set aside following an inter partes application.
It is clear that if leave to apply for judicial review is granted ex parte that it should not subsequently be set aside unless the court is satisfied on inter partes argument that the leave should plainly not have been granted; see R v Secretary of State for the Home Department, Ex p Chinoy (1991) 4 Admin LR 457 and Sharma v Brown-Antoine, para 22. In Chinoy Bingham LJ said:
“I would, however, wish to emphasise that the procedure to set aside is one that should be invoked very sparingly. It would be an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes which would then be followed, if the leave were not set aside, by a full hearing. The only purpose of such a procedure would be to increase costs and lengthen delays, both of which would be regrettable results. I stress therefore that the procedure is one to be invoked very sparingly and it is an order which the court will only grant in a very plain case.” (Emphasis added)
Simon Brown J followed this statement in R v Secretary of State for the Home Department, Ex p Sholola [1992] Imm AR 135, in which he said (at 138):
“It is not sufficient to show merely that the judicial review application is distinctly unpromising and most likely to fail. It is not sufficient merely to persuade the judge hearing the setting aside application that he personally would not have been disposed to grant leave and certainly would not have been disposed to do so had he heard the respondent's argument and perhaps had the advantage of seeing their evidence. Rather it is necessary to deliver some clean knockout blow to justify invoking this procedure.”
In R v Environment Agency, Ex p Leam (unreported) 18 March 1997 Laws J expressed the principle succinctly when he said that “such an application is not to be brought merely on the footing that a respondent has a very powerful, even an overwhelming, case”.
The Board considers that the reasons expressed by Bingham LJ in Chinoy are applicable in relation to an appeal against the grant of leave to apply for judicial review, so that leave to apply for judicial review stands on appeal unless the appellate court is satisfied that it should plainly not have been granted.
In relation to the issues raised on this appeal the relevant legislative provisions are contained in the Children's Authority Act, the Adoption of Children Act 2000 and the Adoption of Children Regulations (110/21/2015) (“the Regulations”).
The Children's Authority Act establishes the appellant. Section 5 of the Children's Authority Act provides the appellant's powers and functions, which include the investigation and making of recommendations with respect to the adoption of children in accordance with the Adoption of Children Act.
Section 9(1) of the Adoption of Children Act 2000 provides that “No person other than the [appellant] shall make arrangements for the adoption of a child.”
Section 10 of the Adoption of Children Act 2000 provides that:
“In making arrangements for the adoption of a child the [appellant] shall —
(a) have regard to all the circumstances and first consideration shall be given to the need to safeguard and to promote the welfare of the child;
(b) so far as is practicable, ascertain the wishes of the child and give due consideration to them, having regard to the age and understanding of the child.”
The Regulations are made under section 40 of the Adoption of Children Act 2000. Regulation 3(1) provides that:
“A person who wishes to adopt a child shall make an application to the Authority in the form approved by the Authority.”
Regulation 3(2) provides that:
“An application under sub regulation (1) shall be accompanied by —
(a) photo identification;
(b) the names and contact information of three referees;
(c) a police certificate of character issued within six months before the application in respect of the applicant and each member of the household over 18;
(d) a medical certificate of fitness, as set out in the form approved by the Authority, as to the physical and mental health of the applicant. Where the applicant is the natural father or mother of the child, that person shall not be required to submit a certificate of fitness unless so requested by the Authority; and
(e) any other information as considered necessary by the Authority.”
Regulation 4(1) provides that:
“Upon receipt of an application under regulation 3(1), the Authority shall conduct an investigation if necessary to determine whether an applicant should be placed on a list of suitable persons.”
The factual background, as at the leave stage, in relation to AB, the respondent and to the respondent's application to adopt AB or any other child can be summarised as follows.
In September 2015 AB was born at the Eric Williams Medical Sciences Complex (“the hospital”). Due to medical complications, he spent one month in the hospital's neonatal intensive care unit.
On 9 October 2015 AB was released into the care of his...
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