Tag Archives: non molestation order

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.

Non molestation orders made without the other party present

This is Practice Guidance issued by the President of the Family Division on 18 January 2017

Family Court – Duration of Ex Parte (Without Notice) Orders

This Guidance was originally issued on 13 October 2014. This revised Guidance, issued on 18 January 2017, supersedes the previous Guidance.

1 The Magistrates’ Association and the National Bench Chairs’ Forum have raised with me the question of whether it is proper to grant an ex parte non-molestation injunction for an unlimited period. They suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.

2 In expressing that view, the Magistrates’ Association and the National Bench Chairs’ Forum are entirely correct. To grant an ex parte (without notice) injunction for an unlimited time is wrong in principle. The practice of granting such orders for an unlimited time, if this is still occurring, must stop.

3 Subject only to paragraph 8, the same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order.
4 The law is to be found in Horgan v Horgan [2002] EWCA Civ 1371, paras 5–6 (Ward LJ), R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin), paras 37–41 (Munby J), In re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ 1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ) and Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras 49-61, esp paras 59-61 (Munby P).

5 The relevant principles, compliance with which is essential, are as follows:
(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date. It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).
(ii) The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made. How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6, often a very short listing may well be appropriate.
(iii) Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days. This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one-off problem that may subside in weeks rather than months.
(iv) The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.
(v) Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.
(vi) The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’ is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.
(vii) If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6 Experience suggests that in certain types of case, for example, non-molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.
(i) When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re-service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard.
(ii) If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:
(a) Paragraphs 5(i), (iii)-(v) must be complied with in relation to the new order and the new order will need to be served.
(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in the application or in the initial order, (a) the new order must specify a new return day, and (b) paragraph 5(ii) must be complied with in relation to the new order.

7 I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:
(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or
(b) there is a real risk that, if alerted to what is proposed, if ‘tipped off’, the respondent will take steps in advance of the hearing to thwart the court’s order or otherwise to defeat the ends of justice. In an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings.

8 Nothing in this Guidance derogates from, or otherwise modifies, the principles and safeguards to be observed on an application for an ex parte (without notice) freezing or search order: see L v K (Freezing Orders: Principles and Safeguards) [2013] EWHC 1735 (Fam), [2014] Fam 35.

Sir James Munby
President of the Family Division

Violence and the Family Courts

I am grateful for this post from ‘J’ who contacted the Transparency Project, wanting to share her experiences of going through the family courts and trying to deal with a violent ex partner.

The Transparency Project will publish Guidance in the new year on the law and practice in such cases involving violent or allegedly violent parents who seek orders relating to their children. Please comment or contact me if you have a story you wish to share. The Transparency Project also hopes to organise a conference to launch its Guidance and discuss these issues. Is the family court really failing so badly the victims of violence and their children? And if so, what can we do about it?

My Story

My experience started in 2014 when my violent ex applied to court for access to our child.
This was a man with 16 violent convictions, several against me and other partners.
I had managed to end the relationship in 2013. I got a non molestation against him, yet I was continually stalked & harassed by him to the extent that he was arrested and remanded in prison because of it.

I had rang the police 40+ times, 2 blue lights from Oct 2013 – Dec 2013.
He further harrassed me from prison with letters and was re arrested in prison due to that.
He was extremely violent to myself during the relationship and also my children.
He is diagnosed with 4 personality disorders back in 2008 ( unknown to me until court hearing started ).
Borderline personality disorder
Histronic personality disorder
Avoidant personality disorder
Paranoid personality disorder

Cafcass had several concerns regarding him and his violent history so the case was listed for fact finding hearing.
I was cross examined by a man that had tried to kick our child out of me at 10 weeks pregnant
He was extremely aggressive in the court constantly with the judge having him removed several times.
My barrister resigned from the case as he had threatened her also.
He was stabbed in broad daylight in the street half way through this case with a family I had proved to the judge he was fighting with constantly.
His lifestyle and violence was always present.

Yet the judge handled him with ” kid gloves ”
He only paid the fee for court £260.
Never paid another penny even though he was working.
He used my legal aid to get him through court ligitant in person .
As my legal team did all the court orders etc.
My police disclosure alone cost over £3000 funded by my legal aid ( that I contributed to until I had to move home for my safety & my living costs were highly increased ).
I was constantly called a whore & a slag in the court room in front of the judge yet all he got was a telling off.
Fact finding was in my favour as everything I had gone through we had documentation for from police etc.
But the court still said that he could have supervised access.

This put me and my child at further risk as the cafcass offices weren’t safe for me to attend I fought all the way to try stop any contact suggesting indirect contact, yet the history and indeed behaviour of this man in court and out didn’t seem important at all to the judge.
All I got was just because he’s violent don’t make him a bad father , something I strongly disagree with.
In August of this year he was arrested at the court by police for sending his 16 yr old daughter threatening messages.
The police sat in the courtroom with him.
Yet the judge seemed to not acknowledge this at all.

This was a man with extremely violent history trying to get access to a young child, yet was threatening his eldest daughter and nothing was said about it.

I have been to hell and back for 2 years having to face that man multiple times.

He would just email the court if something wasn’t going his way and then another hearing listed
I got out of the toxic relationship alive with my kids just to be thrown back into a extremely unsafe situation month in month out at the hands of the family courts.
I felt like a criminal sat in that court when all I was doing was trying to protect my child from a dangerous and violent man.