This case, in which Keehan J made wide-ranging injunctions against a number of men who he was satisfied had been involved in grooming children for nefarious purposes, made the news. I have been waiting for the judgment for the following reasons :-
1. This remedy, if it stands up, is a better approach than placing victims of child sexual exploitation in secure accommodation (locking up the victim)
2. The precise methodology was not in the press reports, particularly in the use of the inherent jurisdiction not only to protect AB, the subject of the application, but all children under 18. Is this lawful, and if so, how?
[On the latter point, the Inestimable Martin Downs has written persuasively over at the UK Human Rights blog
particularly on whether there are difficulties in using the inherent jurisdiction to achieve something for which Parliament has laid down a statutory mechanism for (albeit one with different tests) ]
Birmingham City Council v Riaz and Others 2014
Here are the injunctions that Keehan J made (I have italicised the bits that I consider problematic)
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 18th August 2015.
There isn’t really much doubt that the High Court has power under the inherent jurisdiction to make all of those injunctions about AB, the subject of the application. The issue is, are the bits in italics stretching the inherent jurisdiction too far?
I appreciate that for many readers, their reaction might be the same as mine was initially – they are grown men who shouldn’t be hanging around with teenagers anyway, they should be stopped.
As a matter of morals and ethics, I probably agree. I’m no fan of what these men are said to have done.
Legally speaking though, this is very widely drawn, and is it a proper use of inherent jurisdiction? Long-time readers might know of my disquiet when judges trot out that old saw about the powers of inherent jurisdiction being theoretically limitless.
It is a long and detailed judgment, but the passage that deals with whether there is power to make the order is very short.
- 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” Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
- The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 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: s100 (3) Children Act 1989.
- 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.
- In Re M and N (Minors)  1 All ER 205 at 537, Waite LJ said:
“the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages”.
- 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. I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.
The Court applied the civil standard of proof here – in fact, as is plain from the judgment, the police were unable to seek prosecutions on this case and the criminal standard of proof would not have been made out. It might surprise family lawyers, who think that the civil standard of proof was put to bed with Re B, to know that for other civil proceedings the debate rages on.
For serious allegations, and particularly where the consequences are serious, there is authority – Haggar for one, suggesting that the civil standard of proof approaches the criminal standard.
These men have been named and reported in the Press as predatory paedophiles or at least grooming with that sort of end in mind. And on the balance of probabilities rather than that higher test. Is it the right standard of proof, given the serious consequences that must have had for them?
Readers may be interested in the judgment as it relates to publicising the men, but that’s outside the scope of my interest for today, and others are better placed to write about it.
The “Riaz” route is an option for Local Authorities, and the Judge praised the Local Authority for their hard work and creative thinking. Is it robust? That would probably have to wait for a judgment in a case where the challenge to (a) powers and (b) standard of proof is more vigorously raised.
(Or heaven forbid, a committal application for breach, when the validity of the original order might be tested more fiercely)