Neutral Citation No. [2006] NICA 18	Ref:     	KERF5557	
			
Judgment: approved by the Court for handing down	Delivered:	03/05/2006	
(subject to editorial corrections)			

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
________

IN THE MATTER OF AN APPLICATION BY A AND D
FOR JUDICIAL REVIEW
 ________

Before Kerr LCJ, Campbell LJ and Sheil LJ
________

KERR LCJ

[1] This is an appeal against a decision of Gillen J dismissing the judicial review challenge of the appellants to a decision of a Health and Social Services trust to place two of the appellants’ children with their uncle and aunt (whom we shall refer to as Mr and Mrs B).

[2] The background to the case is that in November 2004 Gillen J had made a care order in respect of both children on the application of the trust.  Subsequently, the appellants were charged with offences in respect of both children.  It is anticipated that Mrs B and her daughter will be witnesses in the criminal trial of the appellants.  It is now scheduled to take place in November 2006.  It is therefore argued that the placement of the children in the home of Mrs B constitutes a violation of the appellants’ article 6 rights.  Alternatively, it is submitted that there is a risk of such a violation and that the trust had failed to consider this in deciding to make the placement.  A number of other ancillary arguments were made to Gillen J which, in view of what has recently transpired, need not be rehearsed.

[3] When the appeal came on for hearing last Thursday, we were informed that the placement had “broken down” and that the children had been removed from the care of Mr and Mrs B.  They are now in temporary foster care.  Arrangements are being made to consider their long term future.  They are not currently in contact with Mr and Mrs B or their family.  Any decision about the future care of the children (including whether they should have contact with Mr and Mrs B) will be taken only after the appellants have been consulted and have participated in discussions about where the best interests of the children lie.

[4] The issues that arose in the judicial review application before Gillen J are now academic.  For the appellants Mr O’Donoghue QC submitted that this court should nevertheless proceed with the appeal because of what he said was the importance of the question whether the trust had acted in violation of their article 6 rights and in order to provide guidance for future cases.  We refused to allow the appeal to proceed and dismissed it.  We now explain our reasons for doing so.

[5] In R v Secretary of State ex parte Salem [1999] AC 450 the House of Lords considered an appeal by a claimant for asylum whose benefit had been discontinued after the Home Office, without informing the appellant, told the Benefits Agency that he had been refused asylum.  The appellant had sought judicial review of the decision of the Home Office to communicate with the Benefits Agency without notifying him.  By the time the case came before the House of Lords, following an appeal to a special adjudicator, the appellant had been granted refugee status and his benefit had been restored.  The question arose whether the appeal should be allowed to continue.  The House of Lords decided that it should not.  At page 456/7, Lord Slynn of Hadley said: -

“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. …

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.” 

[6] On each of the criteria adumbrated by Lord Slynn the appellants’ case fails to qualify for the exceptional course of allowing an academic dispute to be litigated.  Clearly, no point of statutory construction arises.  A detailed examination of the facts underlying the present challenge (many of which are apparently in dispute) would be required and there is nothing to suggest that there is a large number of similar cases where the same point arises.  On the contrary, as Mr O’Donoghue frankly and sensibly accepted, the present appeal is intensely fact specific.

[7] Lord Slynn was careful to say, however, that the example he gave of the public interest requiring an academic dispute to proceed was no more than an example.  He referred to two cases where public interests other than that identified by him were deemed sufficient to allow the matter to proceed.  In Reg. v. Secretary of State for the Home Department, Ex parte Abdi [1996] 1 W.L.R. 298 two Somalian nationals were refused asylum when they sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees.  Following applications for judicial review the Secretary of State agreed to review their cases on the merits so that by the time the matter came before the House of Lords, the outcome of the appeals would not directly affect the applicants.  The House of Lords nevertheless heard the appeals because they raised “a question of fundamental importance”.  And in Reg. v. Board of Visitors of Dartmoor Prison, Ex parte Smith [1987] QB 106 a prisoner was charged with an offence under prison rules of doing gross personal violence to a prison officer.  It was found by the board of visitors that there was no case to answer, but it was directed that a lesser offence of assault be preferred.  On judicial review, the judge held that that direction was made without jurisdiction and prohibited the board from inquiring into the assault charge. The prisoner was no longer at risk from further disciplinary proceedings. Despite opposition from the prisoner, the Court of Appeal ruled, at p. 115: 

“It seemed to all the members of this court that the fact that the prisoner was no longer at risk of further disciplinary proceedings did not deprive the court of jurisdiction to hear this appeal; that there were in it questions of general public interest; and that, even if the prisoner is rightly to be regarded as having no interest in the outcome, the court should, in the exercise of its discretion, hear the appeal on the merits.”

[8] In this jurisdiction in the case of In re E’s application [2002] unreported, where the applicant sought judicial review in the form of a declaration that the Chief Constable of the Royal Ulster Constabulary and the Secretary of State for Northern Ireland had failed to secure the effective implementation of the criminal law and to ensure safe passage for her and her daughter to the Holy Cross primary school for girls on Ardoyne Road, Belfast, it was held that the case should be allowed to proceed, notwithstanding that the protest had ended by the time the judicial review application had come on for hearing.  It was not established in that case that the challenge was academic but, even if it had been, the court indicated that the application should be heard “because the reviewability of police actions in these circumstances and the propriety of such actions are matters in which the public has a legitimate interest”.

[9] Mr O’Donoghue suggested that it was in the public interest that the appeal should proceed because, absent guidelines from this court, Gillen J’s judgment would provide the only guidance for trusts as to the proper approach to article 6 rights of parents placed in a similar situation to the appellants.  We do not accept that submission.  As we have said, this case is highly fact specific and we do not consider that the judgment at first instance can be applied generally.  Gillen J concluded that no violation of article 6 arose because of his conclusion that there would be no collusion between the witnesses to give evidence on the appellants’ trial and no contamination of the children’s evidence.  That is a conclusion which is self evidently confined to the facts of this case.

[10] Had the children remained with Mr and Mrs B and the appeal continued to be viable, a number of potentially quite difficult issues would have arisen.  It would have been necessary to consider whether the risk of collusion between the witnesses or the danger that the children might be subject to pressure as to the testimony that they were to give against their parents was sufficient to constitute at this stage a violation of the appellants’ article 6 rights.  It would also have been necessary to examine the issue of whether the trust was competent to make an assessment of the risk of the children’s evidence being contaminated by living with Mr and Mrs B; whether the trust had sufficient information to allow them to make a judgment as to whether there was likely to be a violation of the appellants’ convention rights; whether it was proper for the trust to embark on such an inquiry; whether, even if it concluded that there was a risk of an article 6 violation, the trust was bound to remove the children from the care of Mr and Mrs B, if it was considered that otherwise these arrangements were in the best interests of the children;  whether the appellants would be debarred from challenging the avowed article 6 violation in these proceedings; and many other related issues.

[11] Many, if not most, of these issues would have required a close examination of the factual matrix that underlay them.  The outcome of the disputes on many of the issues would have depended on the view that one formed of the facts.  This is therefore pre-eminently a case that should not be allowed to proceed, given that the factual position has undergone a complete transformation.  Such observations on these issues as might have been made would have depended on a set of circumstances that no longer exists and is unlikely to be replicated with sufficient similarity to allow for useful guidance for future cases to be given.

[12] We are satisfied that the judgment of Gillen J does not purport to lay down any particular principle or standard that would be applicable in future cases.  As we have said, his conclusion on the article 6 issue was reached because of his view that on the facts of this case no possibility of a violation arose.  He therefore found it unnecessary to address the matters outlined in paragraph [10] of this judgment.  If, as Mr O’Donoghue asserts, the judge was wrong in his conclusion (as to which we express no view) that is an error which is perforce confined to the issues in this case and cannot affect the outcome of any other.  For these reasons we dismissed the appeal.