High Court grants leave for judicial review where statutory participation safeguards for a non-verbal adult were allegedly breached.

APPROVED [2026] IEHC 402

THE HIGH COURT

JUDICIAL REVIEW

2026 418 JR

BETWEEN

A.H.

APPLICANT

AND

P.A.H.

RESPONDENT

M.O.H.

NOTICE PARTY

JUDGMENT of Mr Justice Garrett Simons delivered on 24 June 2026

INTRODUCTION

1. This judgment is delivered in respect of an ex parte application for leave to apply for judicial review. The applicant seeks leave to challenge an order of the Circuit Court made in proceedings under Part 5 of the Assisted Decision-Making (Capacity) Act 2015.

2. The person who is the subject of the Circuit Court order is a young man who has been diagnosed with autism spectrum disorder. The applicant for judicial review is his father; the notice party, his mother. For ease of exposition, the parties will be described in this judgment by reference to their familial relationship to one another rather than their status in the proceedings. Thus, the applicant will be referred to as “the Father”; the notice party as “the Mother”; and the person who is the subject of the Circuit Court order as “the Adult Son”. The Adult Son is the named respondent to the judicial review proceedings.

PROCEDURAL HISTORY

3. The Circuit Court order impugned in these proceedings was pronounced in open court on 22 October 2025 (“the impugned order”). To understand the grounds of judicial review, however, it is necessary to go back further in the procedural history.

4. The Circuit Court made a declaration on 31 July 2023 to the effect that the Adult Son lacked capacity. The Adult Son has been diagnosed with autism spectrum disorder, is non-verbal, and requires full-time support.

5. The Father and Mother subsequently entered into a consent agreement concerning the care and welfare of the Adult Son. An interim order was made on 10 November 2023. It is described as having been made pursuant to section 38(2)(a) of the Act. The order records that the terms agreed between the parties were received by the Circuit Court and made a rule of court. The proceedings were adjourned generally with liberty to re-enter.

6. The consent agreement provided, among other matters, that day-to-day care and control would be with the Mother, that the Father would have overnight access on Tuesdays and Thursdays, that arrangements would be made concerning respite care, and that medical and welfare appointments would be notified. It seems that the order did not explicitly appoint either parent as decision-making representative.

7. The Father subsequently filed a notice of motion seeking, in substance, a review of the legality of the procedures in the earlier hearings. The Father’s central complaint was that the Adult Son had not been present, represented, or assisted by a court friend or other appropriate person during the earlier hearings.

8. The notice of motion was first returnable before the Circuit Court on 14 March 2025. The motion was adjourned from time to time. On 2 April 2025, the Circuit Court made an order directing the court registrar to sign the necessary legal aid forms on behalf of the Adult Son for the purpose of selecting legal representation. The order records that the court heard counsel on behalf of the Mother and that there was no attendance by or on behalf of the Adult Son. The Circuit Court also ordered that Mr Gordon Curley (“the Solicitor”) be appointed as the Adult Son’s advisor, representative and advocate for the purpose of ensuring that his best interests were ascertained and communicated to the court following all necessary investigation and consideration by him. The matter was adjourned to 9 May 2025.

9. On the adjourned date, the Circuit Court directed the Solicitor to make such inquiries as he considered necessary and to make a recommendation to the court as to which parent was more suitable to be appointed as the Adult Son’s decisionmaking representative. As discussed at paragraphs 38 to 45 below, this revised role is materially different from that described in the earlier order. The Solicitor’s role seems to have evolved from that of a representative for the Adult Son to that of an assessor assisting the Circuit Court.

10. The Solicitor finalised his report in early October 2025. By letter dated

7 October 2025, O’Gorman Cunningham & Co. Solicitors sent a copy of the report to the Father. The Father prepared a response. Both the report and the response were before the Circuit Court on 10 October 2025. The matter was adjourned again and the Circuit Court delivered its ruling on 22 October 2025.

11. The Circuit Court (His Honour Judge Simon McAleese) made a declaration pursuant to section 37(1)(b) of the Assisted Decision-Making (Capacity) Act 2015 declaring that the Adult Son lacked capacity, even with the assistance of a suitable person as co-decision-maker, to make specified decisions relating to his personal welfare. The Mother was appointed, pursuant to section 38(2)(b), as

decision-making representative for the Adult Son in respect of specified matters concerning personal welfare, property and affairs.

12. The specified matters included decisions concerning the Adult Son’s finances; his attendance at [details redacted] and other support facilities, including respite; the management of medical and dental requirements and medication; and dayto-day care, including diet, hygiene, clothing and accommodation. The order also provided that the Father was to be informed in writing of medical or dental requirements, medication and significant issues arising in relation to day-to-day care, and that the order of 10 November 2023 was modified accordingly.

13. The order further provided that the Father was to have what was described as “overnight access” to the Adult Son one night per week, either Tuesday or Thursday, depending on which day the Mother considered most suitable for the Adult Son’s care and management. The order stated that any further reduction in overnight access would have to be applied for and approved by the court.

14. The order also provided that the Adult Son’s passport should remain in the possession of the court office and that the declaration as to capacity should be reviewed no later than 31 July 2026. This seems intended to reflect the fact that the three-year review period ran from the date of the earlier declaration as to capacity made on 31 July 2023.

15. It seems that the Circuit Court order was not drawn up until 13 February 2026. The Father avers that he did not receive a certified copy of the order until

17 February 2026, and that he then sought legal advice. These judicial review proceedings were filed in the Central Office of the High Court on 23 March 2026. The Father appears as a litigant in person.

THREE-MONTH TIME-LIMIT

16. Order 84, rule 21 of the Rules of the Superior Courts provides that an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose. An application for leave is regarded as having been “made” once the statement of grounds and verifying affidavit are filed in the Central Office of the High Court: see Rules of the Superior Courts (Order 84) 2024.

17. Order 84, rule 21(3) and (4) confer discretion on the High Court to extend time as follows:

“(3) Notwithstanding sub-rule (1), the Court may, on an

application for that purpose, extend the period within which

an application for leave to apply for judicial review may be

made, but the Court shall only extend such period if it is

satisfied that:

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make

the application for leave within the period mentioned

in sub-rule (1) either:

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by

the applicant for such extension.

(4) In considering whether good and sufficient reason exists for

the purposes of sub-rule (3), the court may have regard to the

effect which an extension of the period referred to in that

sub-rule might have on a respondent or third party.”

18. The obligations to be complied with by an applicant who seeks an extension of time are prescribed under Order 84, rule 21(5). This rule provides that an application for an extension of time shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the period prescribed and shall verify any facts relied on in support of those reasons.

19. The Supreme Court in M. O’S. v. Residential Institutions Redress Board [2018] IESC 61, [2019] 1 ILRM 149 has confirmed that an applicant, who does not apply for leave within the time specified, is required to furnish good reasons which explain and objectively justify the failure to make the application within the time-limit, and which would justify an extension of time up to the date of institution of the proceedings.

20. The principles governing the extension of time have been considered more recently by the Court of Appeal in Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109. Relevantly, the Court of Appeal (per Murray J.) held that the factors of which account may be taken will include: the nature of the order or actions that are the subject of the application; the conduct of the applicant; the conduct of the respondent; the effect of the decision it is sought to challenge; any steps taken by the parties subsequent to that decision; and the public policy that proceedings relating to the domain of public law take place promptly except where good reason is furnished.

21. The Court of Appeal also emphasised (at paragraph 125) that in the vast majority of applications for an extension of time, the court has no role in assessing the strength of the underlying merits of the proceedings. This is subject to a possible exception where an applicant’s case was extremely strong to the point that the only extant issue in the proceedings was whether time should be extended.

APPLICATION FOR EXTENSION OF TIME

22. The impugned order of the Circuit Court was pronounced in open court on

22 October 2025. This was the date upon which grounds for the application for judicial review first arose. Accordingly, the three-month period prescribed by Order 84, rule 21 expired on 22 January 2026. The judicial review proceedings were not filed in the Central Office of the High Court until 23 March 2026. The application is, therefore, two months out of time.

23. The applicant for judicial review, the Father, was present in the Circuit Court on

22 October 2025. It follows that the Father would have been aware on that date that the principal breach now complained of, namely that the Circuit Court had dispensed with the requirement that the application be heard in the presence of the Adult Son, had occurred. The Father would also have been aware of the role played by the Solicitor and of the substance of the Circuit Court order.

24. The Father seeks to rely on the fact that he did not receive the certified order of the Circuit Court until 17 February 2026. It is correct to say that sight of the terms of the order was necessary to allow the Father to formulate this aspect of the grounds of judicial review. In particular, the actual wording used to dispense with the Adult Son’s attendance, as the relevant person, is significant. As discussed below, it suggests that the statutory criteria under section 139 may not have been properly applied. It would have been difficult for the Father, as a litigant in person, to recall the actual wording used in an order pronounced orally. This represents a circumstance outside the control of the applicant for judicial review for the purposes of Order 84, rule 21(3)(b).

25. In considering whether to grant an extension of time, it is salutary to identify the person who would be most affected by the refusal of an extension. Here, that person is the Adult Son. The Adult Son is the subject of the impugned order, i.e. the “relevant person”. He is a vulnerable adult. The impugned order directly affects his personal welfare, residence, medical and dental care, medication, finances, attendance at services, respite arrangements, day-to-day care, and the arrangements for contact with his Father.

26. As discussed under the next heading, there are arguable grounds for saying that the impugned order was made following a process which failed to respect the Adult Son’s statutory procedural rights. It is in the Adult Son’s interest that these issues be considered by the High Court. The impugned order is not spent. It has continuing legal and practical effects on the life of the Adult Son. It regulates ongoing arrangements for his care and welfare. The alleged defects in the process cannot be dismissed as historical irregularities, affecting only the procedural interests of the Father. It would be disproportionate to visit the Father’s delay upon the Adult Son by refusing to allow the judicial review to proceed.

27. There is no evidence, at this stage, of specific prejudice to the intended notice party, i.e. the Mother, arising from the extension of time. By contrast, the prejudice which may arise from refusing an extension would fall principally on the Adult Son, in the sense that the legality of the process by which an ongoing order affecting him was made would not be examined.

28. At the leave stage, and in the absence of identified prejudice to the intended notice party, the court should be slow to shut out a challenge directed to the legality of an order with ongoing consequences for a vulnerable adult, where the proposed grounds concern the very statutory safeguards enacted for that adult’s participation and protection. These considerations amount to a good and sufficient reason for an extension of time.

29. Accordingly, I propose to grant an extension of time pursuant to Order 84, rule 21. The extension is confined to those grounds which concern the alleged failure to comply with the statutory participation and representation safeguards for the relevant person, including the section 139 issue and the statutory basis for the role performed by the Solicitor. This includes the related service grounds pleaded as grounds (6) and (7) of the statement of grounds. The extension of time does not capture the remaining grounds which are, in substance, an appeal on the merits of the Circuit Court’s assessment or a challenge to the choice of

decision-making representative as such.

DISCUSSION OF GROUNDS OF CHALLENGE

30. There are seven grounds pleaded in the statement of grounds. For ease of exposition, it is proposed to discuss first the grounds upon which leave to apply for judicial review is being granted, before turning to those grounds upon which leave is being refused.

GROUNDS UPON WHICH LEAVE IS GRANTED

Grounds (3) and (5)

31. These two grounds relate to the non-attendance of the Adult Son at the hearing, the nature of the legal representation, if any, afforded to him, and the statutory basis for Mr Curley’s appointment and for the role performed by him.

32. The Assisted Decision-Making (Capacity) Act 2015 places the participation of the relevant person at the centre of the court process. The “relevant person” is the person who is the subject of the court proceedings. He or she is the person whose rights, autonomy, welfare, property and affairs may be affected by the order.

33. Section 8 identifies the “guiding principles”. The guiding principles require that there be no “intervention” (which includes a court order) unless it is necessary; that any intervention be proportionate and minimally restrictive; and that it respect the relevant person’s dignity, privacy, bodily integrity, autonomy and control over his or her affairs. There is an obligation to permit, encourage and facilitate the relevant person to participate as fully as possible in the intervention. The court must also give effect, insofar as practicable, to the relevant person’s past and present will and preferences, insofar as they are reasonably ascertainable.

34. Section 139 of the Act provides, relevantly, that an application under Part 5 shall be heard in the presence of the relevant person unless, in the opinion of the court, the relevant person’s absence would not cause injustice to the relevant person, attendance may have an adverse effect on the relevant person’s health, the relevant person is unable for good and substantial reason to attend, or the relevant person is unwilling to attend.

35. Section 36 provides an additional safeguard in circumstances where the relevant person has not instructed a legal practitioner. The relevant subsections have not yet been commenced. Once they are commenced, the court will have discretion to allow the relevant person to be assisted in court by a “court friend”, unless there is already a decision-making assistant, co-decision-maker, decisionmaking representative, attorney, attorney under the Powers of Attorney Act 1996, designated healthcare representative, or another suitable, willing and able person who can assist the relevant person during the hearing. If no such person is available, and there is no court friend, the court may direct the Director of the

Decision Support Service to appoint a court friend. The “court friend” mechanism is an important part of the Act’s participation architecture. The court may hear submissions from the court friend on behalf of the relevant person. If the relevant person does not attend the hearing, the court friend is to promote the interests and the will and preferences of the relevant person in court.

36. The fact that the “court friend” provisions under subsections (8) and (9) of section 36 and section 100 have not yet been commenced leaves a potential lacuna in the presentation of the will and preferences of the person the subject of an application under the Act.

37. The fact that a relevant person is non-verbal does not, of itself, displace the statutory emphasis on participation or on ascertaining, where reasonably possible, the relevant person’s will and preferences. The Act adopts a functional approach to capacity and recognises that communication may occur by means other than speech. Depending on the person’s circumstances, this may include gesture, behaviour, facial expression, assistive technology, sign, objects of reference, pictures, yes/no responses, or other appropriate means. It does not follow, however, that meaningful communication will be possible in every case, or that attendance will invariably be appropriate. The question is fact-sensitive. The court should consider, by reference to the evidence before it, whether any realistic steps or supports are available which would enable the relevant person to participate, or would assist in ascertaining his or her will and preferences and communicating this to the court. This does not require the taking of measures which would be futile, disproportionate, or adverse to the relevant person’s welfare.

38. Turning to the present proceedings, the Circuit Court order recites that the relevant person, i.e. the Adult Son, did not attend the hearing. The order goes on then to state as follows:

“THE COURT DOTH DISPENSE of the requirement that

the application be heard in the presence of the Relevant

Person, pursuant to section 139 of the Assisted Decision-

Making (Capacity) Act 2015, as amended, on the grounds of

notwithstanding whilst it was not possible to ascertain the

relevant persons will and preference report for an

independent advocate, Gordon Curley an independent

Solicitor was available to the Court.”

[The grammatical and other errors above appear in the

original]

39. The Solicitor, Mr Curley, has described his understanding of his role as follows in his report to the Circuit Court:

“I have been directed by Judge McAleese at Letterkenny

Circuit Court on the 9th of May 2025 under the above Act

and matter, to make such inquiries as I deem necessary, to

make a recommendation to the Court as to which parent, [the

Mother] or [the Father], is a more suitable person to be

appointed as [the Adult Son’s] Decision-Making

Representative.”

40. In his report, Mr Curley records that he reviewed the materials before the court and interviewed the Mother, a representative of [details redacted], the general practitioner and the consultant psychiatrist. The report does not record any meeting with, observation of, or attempt to communicate directly with, the Adult Son himself. Nor does it record any attempt, by means of supported or alternative communication, to ascertain the Adult Son’s own will and preferences.

41. It appears from the limited materials available to me on the leave application that the role performed by Mr Curley was, in substance, to carry out an inquiry and to make a recommendation. An inquiry of this kind is of value in that it provides the Circuit Court with an independent assessment of facts, background circumstances, professional views and competing proposals.

42. There are, however, arguable grounds for contending that the availability of such a report and recommendation does not, without more, provide a lawful basis for dispensing with the relevant person’s attendance under section 139 in the absence of one or more of the statutory criteria being fulfilled. One purpose of the section is to ensure, so far as practicable, that the relevant person is not excluded from the process by which orders affecting him or her are made. If the relevant person cannot attend personally, there are arguable grounds for contending that the relevant person’s will and preferences must be communicated to the court by a person who has been assigned that specific role. The function of an inquirer or an assessor is to gather information, evaluate it and make a recommendation to the court. The function of a person assigned to assist with the relevant person’s participation is different. It is to assist, so far as practicable, in placing before the court the relevant person’s own position, will and preferences.

43. The Assisted Decision-Making (Capacity) Act 2015 does not treat the relevant person merely as the object of a welfare inquiry. Rather, the Act places the relevant person at the centre of the statutory process. The guiding principles under section 8 require that the relevant person be permitted, encouraged and facilitated to participate as fully as possible in the intervention, and that effect be given, in so far as practicable, to his or her past and present will and preferences, in so far as same are reasonably ascertainable.

44. Donnelly and Gleeson describe this as part of the Act’s decisive shift towards amplification of the relevant person’s voice and respect for will and preferences, even where the person is found to lack decision-making capacity: “The Assisted

Decision-Making (Capacity) Act 2015 in the Courts: Hearing the Voice of the Relevant Person” (2024) 8(2) Irish Judicial Studies Journal 47.

45. In summary, leave to apply for judicial review is granted in respect of grounds (3) and (5). There are arguable grounds for contending that proper procedures were not put in place to ensure that the Adult Son was afforded an opportunity to participate in the proceedings, whether directly or by some other practicable and lawful means. The “court friend” provisions had not been commenced at the time of the impugned order, and the absence of a court friend cannot therefore be treated, without more, as a failure to take a step which was then available under the Act. The arguable ground is whether, in the absence of that mechanism, some other sufficient means was considered or adopted to ensure, so far as reasonably possible, that the Adult Son’s will and preferences were before the court. There are also arguable grounds for contending that the reasons recited in the impugned order do not coincide with any of the criteria prescribed under section 139 of the Act. The alleged breaches are of a type which, if established at the full judicial review hearing, go to jurisdiction on the basis that a fundamental requirement of the statutory scheme has not been complied with.

Grounds (6) and (7)

46. Leave to apply for judicial review is also granted in respect of grounds (6) and (7). These grounds concern service on the Father and the Adult Son and are sufficiently connected with the broader issues of participation and representation to pass the arguable case threshold.

GROUNDS UPON WHICH LEAVE IS REFUSED

Ground (1)

47. It is asserted that the Circuit Court did not have authority to vary the terms of the interim order of 10 November 2023 in circumstances where same was predicated on a consent agreement between the parties. With respect, this ground fails to recognise the dynamic nature of the statutory scheme. The Circuit Court exercises a continuing supervisory jurisdiction in respect of decision-making arrangements made for a person who lacks capacity.

48. The statutory scheme contemplates that such arrangements may be revisited where circumstances require. The Circuit Court must review declarations of capacity at the intervals specified by it, may revoke or amend a declaration where the relevant person no longer lacks capacity in respect of one or more relevant decisions, and may vary or discharge any associated decision-making order or

decision-making representation order. This ensures that any intervention remains necessary, proportionate, no more restrictive than required, and responsive to the relevant person’s current circumstances, will and preferences.

Ground (2)

49. It is said that the Circuit Court has no jurisdiction under the Assisted Decision- Making (Capacity) Act 2015 to make what are described as “access arrangements” in relation to an adult. This ground seeks to characterise the Circuit Court as having made an order of a type associated with the Guardianship of Infants Act 1964. That legislation regulates custody and access arrangements in respect of minors, not adults.

50. The premise of this ground is that, by reason of the fact that the “relevant person” here is an adult, the Circuit Court had no jurisdiction to make the impugned order. This ground misconceives the nature of the order. It is apparent from the structure of the Act that the Circuit Court has significant powers in relation to the personal welfare, property and affairs of an adult relevant person. Part 5 of the Act applies to adult relevant persons. The Circuit Court has jurisdiction under the Act to make declarations as to capacity and to appoint decision-making representatives in respect of such persons.

51. The fact that an earlier application by the Father under the Guardianship of Infants Act 1964 was, very properly, struck out because his son is an adult is not determinative of the position under the 2015 Act. The impugned order was not made under the ordinary family law jurisdiction concerning children; rather, it was made under the adult-capacity jurisdiction.

Ground (4)

52. This ground asserts that there were irregularities in the manner in which the Father was put on notice of the hearing on 2 April 2025. Insofar as this ground is advanced as a freestanding complaint of prejudice to the Father, rather than as part of the broader participation and representation grounds concerning the Adult Son, it is not arguable. The Father subsequently had an opportunity to prepare his own response and to participate in the hearing in May 2025. Leave to apply for judicial review is refused on this ground.

EXHAUSTION OF ALTERNATIVE REMEDIES

53. It is necessary to consider whether the availability of an appeal to the High Court under section 141 of the Assisted Decision-Making (Capacity) Act 2015 militates against the grant of leave to apply for judicial review. Section 141 provides that an appeal, on a point of law only, lies to the High Court from a

decision of the Circuit Court exercising jurisdiction under the Act.

54. The principles governing the exhaustion of alternative remedies have recently been restated by the Supreme Court in Amariei v. Chief Appeals Officer [2026] IESC 22 and A.B. v. Chief International Protection Officer [2026] IESC 23. The default position is that a party should pursue a statutory appeal or review rather than initiate judicial review proceedings. The rationale for this principle includes respect for the statutory appellate structure established by the Oireachtas, the advantages which an appeal may have over judicial review, the conservation of scarce judicial resources, and the avoidance of unnecessary cost and delay. The onus is upon the applicant for judicial review to establish, at least on an arguable basis at the leave stage, that the alternative remedy is not adequate or that there is some particular exigency in the interests of justice which requires the supervisory jurisdiction by way of judicial review to be invoked.

55. This assessment must be carried out at the leave stage, even where the application is made ex parte. If, taking the applicant’s case at its height, it is clear that the alternative remedy is adequate and that no exception to the default position is arguable, leave should be refused.

56. The default position applies not only to complaints about the merits of a decision, but also to many complaints framed as breaches of fair procedures. The Supreme Court in A.B. emphasised that judicial review is not available merely because an arguable procedural error is alleged at first instance. Even where a breach of natural or constitutional justice is alleged, the existence of an adequate appeal may require judicial review to be refused.

57. In the context of alleged procedural unfairness, A.B. identifies the relevant exception in stringent terms. Judicial review may lie notwithstanding the availability of an appeal where the alleged breach amounts to a fundamental denial of justice, such that the hearing cannot properly be regarded as a hearing at all, or where a fundamental requirement of the statutory scheme has been ignored. The court of judicial review must, therefore, consider whether the complaint is merely that the lower court erred or whether, alternatively, the complaint is that the process by which the order was made was so fundamentally defective that the statutory jurisdiction was not lawfully exercised as intended.

58. Applying those principles to the leave application in the present case, the availability of an appeal under section 141 does not preclude the grant of leave on the limited grounds upon which it is proposed to grant leave. The grounds contend that the Circuit Court made orders affecting the Adult Son’s welfare, residence, medical care, finances and day-to-day arrangements without the participation safeguards required by the Act being lawfully engaged. In particular, it is alleged that the statutory criteria for dispensing with the Adult Son’s attendance were not fulfilled; that his will and preferences were not properly ascertained; and that, in the absence of the not-yet-commenced “court friend” mechanism, no other lawful and sufficient means was adopted to place his will and preferences before the court.

59. If those allegations are established at the full hearing, same would be capable of amounting to a defect in the participation of the very person whose rights and autonomy were the subject matter of the proceedings. The Circuit Court’s jurisdiction under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 is conferred on the premise that the relevant person’s participation will be permitted, encouraged and facilitated so far as practicable, and that his or her will and preferences will be addressed in the manner required by the Act. A failure to comply with those core requirements is capable of amounting to a fundamental defect in the statutory process.

60. I am satisfied, therefore, that the availability of an appeal under section 141 does not require leave to be refused in respect of the participation and representation grounds.

61. This conclusion is reinforced by the public importance of the issues raised. The case concerns the operation of a relatively new statutory regime. The questions of when a non-verbal relevant person may be absent from Part 5 proceedings; what steps must be taken to ascertain that person’s will and preferences; and what alternative participation safeguards may be required in circumstances where the “court friend” provisions have not been commenced, raise issues which transcend the facts of the present proceedings. Of course, public importance is not, of itself, a substitute for satisfying the exceptionality threshold identified in A.B. However, where, as here, the grounds pleaded allege a fundamental defect in compliance with the statutory process, this is a factor which supports the conclusion that judicial review is, at least arguably, available.

62. Accordingly, I am satisfied that the Father, as the applicant for judicial review, has established, to the threshold of arguability, that the case falls within the exceptional category in which judicial review may proceed notwithstanding the availability of a statutory appeal. This conclusion is confined to those grounds which concern the alleged failure to comply with the statutory participation and representation safeguards for the relevant person, including the section 139 issue and the statutory basis for the role performed by the Solicitor. This includes the related service grounds pleaded as grounds (6) and (7) of the statement of grounds.

CONCLUSION

63. Leave to apply for judicial review is granted in relation to grounds (3), (5), (6) and (7). An extension of time is granted pursuant to Order 84, rule 21 in respect of these grounds. As the leave application was heard ex parte, and the applicant is a litigant in person, I make no order as to legal costs.

64. The Father, as applicant for judicial review, is required to take up a copy of the leave order and to issue and serve an originating notice of motion in accordance with Order 84, rule 22. A full set of papers should then be served on the respondent and the notice party. The return date for the motion is fixed as

21 July 2026.

Appearances

The applicant appeared as a litigant in person