A. Precedents and authorities cited (and their influence)
1) MK v Poland (ECtHR)
The applicant relied on Strasbourg case law about state obligations to ensure effective access to court and timely adjudication in family matters.
The Court of Appeal distinguished MK v Poland on the facts: it concerned ongoing family proceedings where a residence application
was not even considered for seven months. Here, the applicant’s contact application had been dealt with promptly on an interim basis and determined
finally within nine months; the later “delay” related to an attempt to reopen final orders by an improper procedural route.
2) EK (Latvia) (ECtHR)
EK (Latvia) concerned ineffective state action where court orders were being flouted and authorities were insufficiently proactive in securing
practical effectiveness. The Court of Appeal held that this line of authority did not translate to a duty to issue or progress an application that
was, on its face, jurisdictionally barred/abusive, particularly where the underlying proceedings were effectively over.
3) Henderson v Henderson [1843] 3 Hare 100
The Court deployed the classic abuse-of-process principle as a doctrinal explanation for why the “set aside” application was impermissible:
if the allegations about unfairness, bias, guardian issues, and proportionality could have been raised on appeal (or were raised and rejected),
they could not be re-litigated through a new procedural device. This reinforced the view that HMCTS (and the Administrative Court) were not required
to facilitate a collateral attack.
The applicant alleged apparent bias and “procedural manipulation” because the Administrative Court judge was not the judge he expected and allegedly
had a different professional background. The Court of Appeal held that the Porter v Magill test was not even arguably engaged on these facts.
5) “RE B” (Supreme Court proportionality reference)
The applicant asserted a “wholesale failure” to apply proportionality as mandated in “RE B”. The Court treated this as an attack on the merits of
family-court decisions and on refusals of permission to appeal—matters outside the proper function of the judicial review being advanced and, in any
event, matters for the appellate structure in the family jurisdiction, not for a mandatory order compelling HMCTS to issue an improper application.
6) Administrative Court approach to lower-court matters
The judgment referred to “relevant cases regarding the approach” to judicial review of matters occurring in lower courts, emphasising that only
exceptional circumstances (for example, a gross procedural error amounting to denial of a fair hearing) would justify intervention. Although the
specific authorities were not named in the transcript, the Court’s analysis applied that established restrictive approach to the administrative
actions complained of.
B. Legal reasoning
1) Correct characterisation of what was filed in January 2026
A decisive feature was evidential: the Court required sight of the January 2026 application and concluded it was not a s.91(14) permission request
but a substantive attempt to “set aside” final orders. This mattered because the legal duties of HMCTS (and the procedural steps available) depend on
what application is actually made, not what it is later re-described to be.
2) Effect of a s.91(14) Children Act 1989 bar on “issuing” applications
The Court stated the operational consequence of a live s.91(14) order in clear terms: while the bar remained in force, the applicant could not make
a substantive application relating to contact unless permission was first obtained; accordingly, the court office was under no obligation to issue a
substantive application absent such permission. The only permissible application at that time was for leave under s.91(14), and none had been made.
Although the judgment referenced s.91A(4) Children Act (material change of circumstances when determining leave), it did so to show that
the statutory scheme presupposes a permission stage. That stage was never properly invoked by the applicant’s filing.
3) No duty to progress proceedings the court lacks jurisdiction to entertain
Independently of s.91(14), a circuit judge had indicated the Family Court’s lack of jurisdiction to set aside another circuit judge’s final order
(save within FPR 27.5, which concerns orders made in a party’s absence and was accepted not to apply). The Court held that there is no
obligation to issue or progress proceedings where the court lacks jurisdiction; court staff cannot be criticised for acting consistently with a
judge’s indication that the application is not entertainable.
4) The “delay” point and the high threshold for judicial review in this context
The Court accepted that unreasonable administrative delay can, in principle, engage Articles 6 and 8. However, it held the facts fell far short of
the exceptional denial-of-justice threshold: by the time of the renewed permission hearing, the delay was under four months and, crucially, no longer
unexplained because the mid-January communication provided a rational reason (jurisdiction) for not progressing the set-aside application.
5) Misconceived relief and separation of judicial vs administrative functions
The Court treated parts of the pleaded relief as misconceived insofar as they sought, directly or indirectly, to compel judicial case management
(for example, directions compelling allocation to particular judges/courts). It reaffirmed the boundary between (i) administrative processing by
HMCTS and (ii) listing/allocation decisions as a judicial function. Even where the applicant later sought to reframe his requested remedies, the
Court held the Administrative Court must address the claim as pleaded.
6) “Totally without merit” certification
The Court held that a judge need not write a discrete section justifying the totally-without-merit certificate where the reasoning already shows the
claim is wholly unarguable (e.g., describing the case as not “remotely close” to circumstances warranting intervention).
7) Anonymity and reporting restrictions
The Court endorsed and extended the Administrative Court’s anonymity/reporting restriction order to the appeal, treating it as a proportionate
interference with open justice given the child’s best interests. It relied on the mechanisms used below (CPR 39.2(4), inherent
jurisdiction, and section 11 Contempt of Court Act 1981), maintaining ciphers and prohibiting publication of identifying material.