Protecting looked after children

Ben Mansfield considers what local authorities can do – including seeking injunctive relief – to protect looked after children who are at risk of exploitation.

This article considers some of the powers available to local authorities to seek to enforce the proper exercise of their parental responsibility pursuant to care orders for vulnerable Looked After children.

As shown by the recent Child Sexual Exploitation (CSE) case of Birmingham City Council v Riaz et al [2014] EWHC 4247 (Fam), there is powerful injunctive relief available.

There can be numerous reasons for placements under care orders breaking down. They include pressure coming from third parties, for instance adults who aid and abet absconsion or the child being at risk from people whose intentions are to sexually exploit them or involve them in criminal activities.

The courts have wide ranging but rarely used powers to injunct third parties who seriously undermine welfare of children and uphold the exercise of the parental responsibility granted to the local authority pursuant to section 33(3) of the Children Act 1989 (CA) upon the making of a care order.

The Law

The ‘Old’ position

There are two leading cases on injunctive relief in circumstances where the Local Authority has a final care order: C v K (Inherent Powers: Exclusion Order) [1996] 2 FLR 506 and Re: P (Care Orders: Injunctive Relief) [2000] 2 FLR 385.

In C v K at 524 A-G Wall J summarised the principles from the relevant cases. His summary includes the following:

A) Leaving on one side the jurisdiction of the High Court over children who are specifically its wards, there exists an inherent jurisdiction in both the High Court and the County Court to protect children from harm, exercisable irrespective of the proceedings in which the issue of the need to protect the children arises.

B) There is co-existing jurisdiction given in the High Court by s. 37 of the Senior Court Act 1981 (SCA) and in the county court by s. 38 of the County Court Act 1984 (CCA) to grant injunctive relief in support of legal and equitable rights [1].

C) The powers exercisable under ss 37 and 38 may be invoked in support of the rights and duties conferred on a person by a residence order… a non-resident parent may be restrained from interfering with the residential parent’s exercise of parental responsibility.

D) The powers exercisable extend to the granting of injunctions against third parties. So a person who is not a parent of the child may be restrained from interfering with parental responsibility by a person who has a residence order for a child.

E) The use of ss 37 and 38, as opposed to the inherent jurisdiction, is appropriate when the need to protect the child is then bolstered by the need to protect the rights of the party with parental responsibility to exercise that responsibility appropriately.

That case was further considered in Re: P, in which the following points were made:

A) The powers conferred by s. 37 of the SCA on all divisions of the High Court are not part of the High Court’s inherent jurisdiction with respect to children referred to in s. 100 CA.

B) The powers conferred by s. 37 SCA are available to support the rights conferred by s. 33(3) CA after a care order has been made.

C) Section 100 CA (governing the use of wardship) does not apply to the general statutory power under S37 SCA.

D) No leave is required to make the application.

The Test

However, there was doubt about this final ‘leave’ point and Charles J did, in any event, find that the analogous leave test for inherent jurisdiction applications was met, namely that there was a likelihood that the child would suffer significant harm (rather than ‘just and convenient’ as set out in s. 37)2.

The current position

However, the recent case of BCC v Riaz has shown that the current way the courts seek to make such orders in CSE cases is, in fact, by using the inherent jurisdiction. In paragraph 42 onwards Keehan J set out the law on this point very clearly:

“The inherent jurisdiction of the High Court 'may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits' …

"The use of the inherent jurisdiction has been substantially curtailed by the provisions of s. 100 Children Act 1989. A local authority may not apply for any exercise of the court's inherent jurisdiction with respect to children without the leave of the court: s. 100 (3) Children Act 1989.”

He went on to cite the Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2, which 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.

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.

Keehan J made clear that:

"I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court.”

The terms of the injunctions in Riaz were drawn by reference to "a number of recent legislative provisions which sought to prevent antisocial or sexually harmful conduct, namely the Crime and Disorder Act 1998 (antisocial behaviour orders) and the Sexual Offences Act 2003 (sexual offences prevention orders and risk of sexual harm orders)".

By way of illustration, some of the terms that were approved clearly meet the need for real protection for vulnerable children from third party exploitation, and CSE in particular:

IT IS ORDERED THAT:

From the time this order is served upon X until the date specified in this order X Must Not:

a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/FaceTime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB

b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB

c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB

d. follow AB in any location public or private

e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.

f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.

g. incite, encourage or facilitate the introduction of AB to any other male.

h. incite or encourage any other male to seek any form of contact with AB

i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.

And is bound by such order until ….

The reality is then that there may be a dual route by which local authorities can obtain protection for children who are being exploited by third parties, either by s. 37 of the Senior Courts Act, or by way of the inherent jurisdiction.

The current jurisprudence would suggest that the inherent jurisdiction route is likely to be preferred, and it confirms judicial willingness to make wide ranging injunctive orders against persons whom the Police are not in a position to prosecute.

Breach of such an injunction would be a contempt of court and so may lead to up to two years' imprisonment.

Such orders have real teeth and should be actively considered by local authorities in CSE cases in particular.

Ben Mansfield is a barrister at 36 Bedford Row.

[1] It is suggested that all references to the High Court should be read as if the case had been allocated to a High Court or Section 9 judge in the Family Court.

[2] In C v K on the basis that ouster clauses should be granted with ‘extreme caution’ and therefore only made ‘by analogy’ with s. 100 CA, namely whether there was a likelihood of significant harm to the child, 524 F-G; In Re P despite describing this as “only an analogy” Charles J applied the ‘significant harm’ leave test in any event just in case he was wrong!