The Supreme Court has dismissed an appeal by a mother challenging the refusal of her judicial review case over access to her three youngest children, who are in the care of the Child and Family Agency (CFA).
The court held that the mother could not renew the same judicial review grounds after an earlier judge had refused leave on their merits. It said the earlier refusal did not create a res judicata bar, but, on the circumstances of this case, renewing the same grounds without relevant new evidence or changed circumstances was an abuse of process.
The mother, identified in the judgment as Ms G, has five children. Her three youngest were placed in care under long-term orders in 2013. At the time of the High Court hearing in October 2016, they were aged 11, nine and five. The arrangements then provided for supervised visits with all three children around each child’s birthday, Christmas and Easter, amounting to about five hours a year, as well as two hours each month with her daughter. The judgment said the children had no visits with their older siblings and no telephone or correspondence access with their mother outside supervised visits.
After a High Court judge refused her first application for leave in July 2015, Ms G applied again in January 2016. She said she had been wrongly advised by her lawyers about the time limit for seeking judicial review. The Supreme Court found that the evidence of that advice justified the later extension of time to challenge the Circuit Court orders. But it said that evidence related to the delay, not the merits of the grounds already refused.
The second application also challenged a January 2016 letter from a CFA complaints officer. The letter described the existing access arrangements and said the children wanted visits to remain one hour and to take place on the stated occasions. The Supreme Court held that the letter explained the existing position rather than making a fresh decision, and that the agency was not required to make a new access decision in response to Ms G’s request in the circumstances described.
The court said a person dissatisfied with CFA access arrangements may apply to the District Court under section 37 of the Child Care Act 1991, which can make or vary an access order. It considered that route a more appropriate remedy for Ms G’s complaint. The Supreme Court therefore found no basis to send the judicial review case back for another hearing and dismissed the appeal.