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Mother’s legal case over son’s care dismissed as ‘vexatious’ and ‘abuse of the process’

A mother who launched a legal action against two magistrates over her son being removed from her care has seen her case dismissed by the Supreme Court.

The woman, who cannot be named for legal reasons, said she suffered psychological harm and financial loss because of supervision orders and care orders made for her son between 2008 and 2010 and the subsequent legal battle.

Chief Justice Narinder Hargun said her case was bound to fail, noting that the Court of Appeal had already found no evidence of malice or reckless indifference by the parties.

“In the contrary, the Court of Appeal held that the Department of Child and Family Services was first moved to intervene, not at the volition of the officers but by the concerns raised with them and the police services by the child’s father,” he wrote.

“The Court of Appeal further held that the matter was taken in due course before the Magistrates’ Court and ‘orders made after detailed assessment and inquiries were put before and considered by the court, including reports from qualified and independent psychologists’.

“In light of this finding, it is impossible to say that the conduct of the magistrates was such that it amounted to misfeasance in public office.”

The appellant brought claims against magistrates Tyrone Chin and Juan Wolffe, Ashley Smith, a court associate in the Family Court, and the DCFS in 2018 over the handling of her child’s case.

Supervision orders and care orders for her son were made between 2008 and 2010, but the appellant said she did not appeal the decisions at the time because she did not know she could.

Early in proceedings, the mother voluntarily removed both magistrates and Ms Smith as defendants after being warned that magistrates could not be held personally liable for decisions made in their judicial capacity and Ms Smith did not play a decision-making role.

The case against the DCFS continued, but was struck down in 2019 by Alexandra Wheatley, the Registrar of the Supreme Court, who found that the claims were vexatious and out of time.

The decision was later upheld by the Court of Appeal, who said that while the case was unfortunate, the appellant had not put forward anything to support her complaints of malfeasance by the department.

The court noted that the mother had consented to the supervision orders at the time they were made and did not seek to appeal them until years later.

The mother sought permission to appeal the case to London’s Privy Council, but the application was refused.

She subsequently relaunched her legal action against the magistrates and Ms Smith, but the Attorney-General’s Chambers called for the suit to be struck out at a hearing on July 26.

Mr Justice Hargun said it appeared the Court of Appeal had already determined that any claims for damages arising out of the decisions made by the magistrates were “wholly misconceived”.

He added: “Even without the decision of the Court of Appeal, it seems clear to the court that the effect of Section 10A of the Magistrates Act 1948 is that there can be no valid claim against a magistrate for monetary damages in respect of his judicial acts whether within or without jurisdiction.”

The court added that it was an abuse of process to pursue the same claims against the magistrates and Ms Smith that had previously been dropped.

Mr Justice Hargun struck out the claims on the grounds that the claim had no reasonable cause of action, was frivolous or vexatious and was otherwise an abuse of the process of the court.

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