Doctor's court application dismissed

News Jada Loutoo 8 Hrs Ago

Justice Robin Mohammed -

The High Court has dismissed an application by a medical doctor to have his judicial review claim against the Children’s Authority proceed as undefended.

The authority was also given additional time to file its response in a challenge to the removal of the doctor’s two minor children from his care.

In a written decision delivered by Justice Robin Mohammed, the court also rejected the authority’s bid to strike out or stay the claim, clearing the way for the constitutional and administrative law challenge to proceed on its merits.

The matter arises from the Children’s Authority’s decision on August 16, 2022, to remove the children from his care based on allegations of abuse. The claimant filed a fixed date claim for judicial review on December 21, 2022, alleging the removal was unreasonable, arbitrary and in breach of his constitutional rights to due process and family life under sections 4(b) and 4(c) of the Constitution.

In addressing whether the claim should proceed as undefended, Mohammed ruled that although the authority missed the 28-day deadline to file its response affidavit, the relief sought by the doctor was “in substance” akin to a default judgment, which is barred in fixed date claims under the Civil Proceedings Rules. The judge described the application as “draconian” and dismissed it.

The court, however, granted the authority’s application for an extension of time and relief from sanctions, finding the delay was relatively short and not intentional. Mohammed accepted that confusion over whether the authority qualified as “the state” for filing deadlines, coupled with staffing changes among its attorneys, provided a sufficient explanation. He held that the public importance of child protection and the seriousness of the constitutional allegations favoured allowing the authority to put forward its evidence.

“The prejudice to the claimant of a short further delay is outweighed by the greater prejudice to the administration of justice in deciding such a claim without the defendant’s evidence,” Mohammed said.

The judge also rejected arguments that the judicial review amounted to an abuse of process or an improper collateral attack on earlier decisions of the Children’s Court and the Court of Appeal, which had upheld an interim wardship order. He found the present claim raised distinct public law and constitutional issues concerning the lawfulness of the initial removal, matters that were not determined in the earlier proceedings.

An alternative application to stay the case pending parallel Family Court proceedings was also dismissed. Mohammed ruled that a stay would unjustly delay consideration of the claimant’s constitutional complaints without advancing the interests of justice.

The Children’s Authority has been ordered to file and serve its response affidavit within 21 days of the ruling. The matter has been adjourned to February 5, for a case management conference. Costs were reserved pending determination of the substantive claim.