Use of the Inherent Jurisdiction to protect a child in care

A local authority applying for an injunction to prevent abuduction of a child

This post looks at what a local authority can do to protect a child in care if they have good reason to believe that child might be at risk of abduction by his parents. This appears to be an increasingly likely scenario as the amount and kind of information easily accessible on line continues to grow, alongside the number of support groups on social media who encourage parents to take direct action against the ‘evil’ system. One option is to apply to the High Court for an injunction against the parents, by asking the court to apply the ‘inherent jurisdiction’.

 

The inherent jurisdiction of the High Court has historically been described as ‘inexhaustible’ or ‘limitless’ . In essence it can be used to ‘fill in the gaps’ of existing statute and case law. However, use of the inherent jurisdiction over the years has become more restricted. Its application now must be considered in the light of existing statute, case law, and the Family Procedure Rules.

‘Wardship’ is part of the inherent jurisdiction which is most often applied to children but this is now subject to very serious statutory restrictions. Wardship cannot be used, for example, as a way to take children into state care because this would mean by-passing the necessary checks and balances set out in the Children Act 1989.

Section 100 of the Children Act 1989 sets out the restrictions to the use of the inherent jurisdiction. Under section 100(3), a local authority who wants the court to exercise it must first get permission and that will only be given if :

• the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
• there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

As the local authority is a corporate body, not an individual person, it cannot apply for orders under the Family Law Act 1996. Therefore, a non molestation order could not be granted to a local authority and seeking an injunction pursuant to the inherent jurisdiction is their only likely  option. However, the court CAN make a non molestation order to protect children in the context of ‘other family proceedings’ – see the discussion below.

The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:
1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

Practical matters – what court?

The inherent jurisdiction can only be exercised by the High Court so you will either need to be in the actual High Court or before a Judge who is allowed to sit temporarily as a ‘High Court’ Judge for the purposes of making such orders. This is permitted under section 9 of the Senior Courts Act 1981; such Judges are described as ‘having a section 9 ticket’.

You can get an injunction without the other side turning up to court if the matter is really urgent but in most cases the court will be keen to know what efforts you have made to let the other side know about your application. The court will need to be satisfied that the local authority have made reasonable efforts to get in touch; for example by visiting known addresses, telephoning, sending texts and/or emails.

If the parents don’t attend court, the Judge can make an injunction for a short period of time – for e.g. a week – then list another hearing to give the parents more time to attend and respond to the application.

Depending on how long ago the care proceedings were, it may also be sensible to at least inform the guardian about the application. However, it may not be necessary for the guardian to play any role in the injunction proceedings.

What should the injunction say?

Injunctive orders must be:

• capable of enforcement and
• must be necessary and proportionate to the risk of harm identified.

So be careful of vague orders or ones that go beyond what is needed to keep the child safe. Much will depend on the facts of the particular case before you and the risk of harm faced by the child. For example, in Birmingham City Council v Sarfraz Riaz and Others [2014] EWHC 4247 (Fam). Keehan J considered the case of Re J (A Child) [2013] EWHC 2694 (Fam) where the President observed that court had a duty to consider whether the terms of the proposed orders were fair, necessary and proportionate to the facts of the case and capable of being enforced.

Keehan J concluded in the case before him that it was appropriate in all the circumstances to make very wide injunctive orders to prevent child sexual exploitation.

The inherent jurisdiction is clearly wide and versatile enough to compass prohibiting respondents from accessing a wide geographical area. For example, consider the decision of the then President of the Family Division the late Sir Nicholas Wall, in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), who made an order banning the respondent from the country of Wiltshire ‘save for specified purposes’ .

Every injunction should have the following paragraphs included

NOTICE TO THE RESPONDENT [Name here]
You should read the terms of this order very carefully. You are advised to consult a solicitor as soon as possible.
An application was made on [this date] by the local authority to the Judge. The Judge heard the application in the absence of the Respondent (if applicable) and read the evidence in Schedule 1 to this order (set out what evidence the Judge considered here)

Variation and discharge
The Respondent or anyone notified of this order may apply to the court at any time to vary or discharge the order (or so much of it that effects that person) but anyone wishing to do so must first inform the applicant local authority

Communication with the Court
All communications about this order should be sent to [the court that made the order]

PENAL NOTICE
To [the Respondent] You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court and you may be sent to prison, fined or your assets may be seized.
This penal notice is attached to the following paragraphs of this order [set out appropriate paragraphs]
Any other person who knows of this order and does anything which helps or permits the Respondent to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized.

Power of arrest attaching to an injunction under the inherent jurisdiction and non molestation orders

You cannot apply a power of arrest to such an injunction.  If it is breached, the local authority must apply to enforce it in the usual way, by asking the court to issue a warrant for the parent’s arrest for contempt of court. The parent will then be bought to court and asked to explain why they breached the order. This is provided for in the paragraph relating to a penal notice, set out above.

In Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam) Keehan J considered the relevant authorities relating to attaching a power of arrest to such an injunction and concluded that this was not permissible. He refered to the judgement of the Court of Appeal in Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538 which had not been drawn to the attention of courts in previous cases and thus had been over looked.

However, you can ask the court to make a non-molestation order against the parents to which a power of arrest is applied.

McFarlane LJ considered this in the case of T (A Child) [2017] EWCA Civ 1889

There is no room for doubt that the court had jurisdiction to consider granting a non-molestation order for the protection of the child in this case under FLA 1996, s.42(2)(b). The court was seized of validly constituted ‘family proceedings’ (s.63(1)), namely the local authority application under the inherent jurisdiction).

The inherent jurisdiction injunction was fixed by the judge to run for the child’s minority and there is no reason why it would have been, or should have been, discharged or superseded if a non-molestation order had also been imposed.

[40] The purpose of s.42(2)(b) would seem to be clear; it is the means by which the court may make orders for the protection of children whose circumstances have come to the notice of the court in other family proceedings.

[41] Once it was accepted that any order under the inherent jurisdiction could not be supported by a power of arrest, it was a perfectly legitimate step for the local authority to ask the court to consider granting a non-molestation order under the 1996 Act by utilising the jurisdiction provided by s.42(2)(b) which is designed precisely for the purpose of supplementing the court’s jurisdiction in other ‘family proceedings’ in this way.

(ii) Non-molestation:
[53] There is no requirement in either the 1996 Act or the case law for there to be some direct interaction between the respondent and the applicant or child in order to establish the basis for granting a non-molestation order. The judge’s finding that M and JM’s conduct was ‘positively harmful’ to the child and, if continued, would be likely to cause significant harm, was more than sufficient to justify exercising the powers under s. 42. The impact on the child’s life of M and JM’s conduct, as described by the foster carers and as found by the judge, plainly amounts to harassment and, as the judge held, applying the s. 42(5) criteria, makes the granting of an order clearly necessary.