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High Court expresses doubt that the inherent jurisdiction covers the ‘name and shame’ CSE cases


Readers will probably be familiar with the case of Riaz, where Keehan J was invited to use the inherent jurisdiction to make injunctions preventing a group of men who were believed to pose a sexual risk to children from associating with children, and also allowed them to be named in the national press.


At the time and still, I have mixed feelings about that case.  As a society, we do desperately want to do something to protect children from Child Sexual Exploitation, and we have to face the reality that criminal prosecutions often cannot get off the ground where the child does not want to make the complaint or give evidence. And at the moment, the only remedy to protect such children is Secure Accommodation – i.e locking them up for being victims, which doesn’t sit well with anyone.


Therefore, when Keehan J announced that he was using the inherent jurisdiction to make injunctions that would prevent men suspected of sexually exploiting children from spending time with children, in a ‘bold and innovative’ move, I was really hoping that it would be a robust mechanism that could be deployed by Local Authorities.


However, when I saw the judgment, I was concerned that it was placing a great deal of weight on the concept that inherent jurisdiction has theoretically limitless powers. I wondered whether it was robust enough if the men who were being subject to the orders sought to challenge the power to make them.

And so it has proven


London Borough of Redbridge v SNA 2015


The London Borough made their application, before Hayden J, set out that they relied on the Riaz case as authority for making the application and no doubt confidently thought that if they could persuade the Judge to the civil standard of proof that these men were more likely than not to pose a risk to children, the order would be made. However, the power to make the order was challenged.


The limit that Hayden J draws is the one that myself and Martin Downs of counsel observed at the time – the inherent jurisdiction has powers to make orders to protect a particular named individual child from such men, but the Riaz order was drafted broadly to protect all children. Hayden J feels that this went too far.



  1. It is easy to see why the Local Authority has brought this application. Indeed, given the emphasis in Dr. Parsons’ report on the risk to adolescent females the Local Authority may very well have faced criticism for failing to act, given the apparent jurisdictional basis on which to do so highlighted in the Birmingham case. If I may say so Mr Lefteri has advised the Authority entirely properly and has prosecuted his case succinctly and effectively. In the course of exchanges however, he could identify no jurisdictional basis for the order he sought other than the Birmingham case.
  2. Mr Lefteri concludes his supplemental submissions thus:

    “It is respectfully submitted that the use of injunctive orders pursuant to the inherent jurisdiction should be perceived as a deterrent to dissuade abusive and exploitative practices of the perpetrators of sexual abuse, not to dissuade Local Authorities from adopting the “bold and innovative” approach of Birmingham City Council for the protection of children.

    The Local Authority does not suggest that the use of injunctive orders should be used as a substitute for the Police actively pursuing Sexual Risk Orders. Indeed, multi-agency cooperation and sharing of information should be strongly encouraged by this Court, irrespective of the outcome. It is respectfully suggested that as a matter of good practice, Courts in care proceedings (or indeed any other family proceedings) where findings of sexual abuse or harm are made, should immediately direct the disclosure of the Court’s judgment to the relevant Police department.

    The purpose of keeping the remedy open to the High Court is to provide potential relief to Local Authorities under the inherent jurisdiction in the future, to account for transitional protective arrangements or where Sexual Risk Orders are inappropriate, delayed or unavailable. The Court will undoubtedly consider each case on its facts and circumstances and consider the implications of such an order on the Convention Rights of each individual against whom such remedy is sought.”

  3. These are important issues and I reserved judgment to reflect on the arguments. The concept of the ‘inherent jurisdiction’ is by it’s nature illusive to definition. Certainly it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’. But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited. Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.
  4. The point is illuminated by considering the fetters that exist on the scope of the inherent jurisdiction in those cases where the needs of an individual child are in issue. In Holmes-Moorhouse v Richmond Upon Thames London Borough Council [2009] UKHL 7 the House of Lords emphasised that a child who is a Ward of Court cannot be regarded as having special privileges, nor has the High Court any power to obtain access to resources for a Ward which would not be available otherwise. The same principle is reflected in the situation of the incapacitous adult see: Aintree University Hospitals Foundation Trust v James and Others [2013] UKSC 67.
  5. Not only is the scope of the inherent jurisdiction restricted but the interface between the Family Court or the Court of Protection and Public Authorities is subtle. Thus the High Court may try to persuade a Public Authority to act in a way which the court considers to be in the best interest of the child but it must not allow itself to be utilised to exert pressure on a public authority see: R v Secretary of State for Home Department ex p T [1995] 1 FLR 293.
  6. The development of Judicial Review, as illustrated by ex parte T (supra), has also served to curtail the exercise of the powers of the inherent jurisdiction. No power be it statutory, common law or under the prerogative is, in principle, unreviewable. The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.
  7. Whilst sympathetic to the objectives of this Local Authority and indeed to those of Keehan J in the Birmingham case, I think Ms. Johnson is correct when she says that to extend the scope of the inherent jurisdiction to children who are neither known nor subject to any proceedings, is to go beyond the parameters of it’s reach. However well intentioned the ambition to prevent child sexual exploitation generally, this is ultimately to make a utilitarian calculation of social policy. The framework within which such children should be safeguarded and protected is for Parliament to create and for the Courts to enforce.
  8. Certainly, a survey of the case law reveals that however creatively the jurisdiction may have been implemented it has always been deployed to protect or promote the best interests of an identified child or vulnerable adult. The most recent consideration of the jurisdiction was by Sir James Munby, the President of the Family Division, in Re M (children) [2015] EWHC 1433 (Fam). In considering whether to grant leave pursuant to s100 (4) the President addressed the application in this way:

    “27. The local authority has turned to the court inviting its assistance and proposing recourse to the inherent jurisdiction, to wardship. That requires consideration of section 100 of the Children Act 1989. There was, in my judgment, reasonable cause to believe that, if the court’s inherent jurisdiction was not exercised, the children were likely to suffer significant harm, as that expression is defined in section 31 of the 1989 Act: see section 100(4)(b) of the Act. I had no doubt that this is a case in which I should give the local authority leave in accordance with section 100(3) of the Act. I was satisfied that each of the conditions in section 100(4) is met. Quite plainly I should exercise my powers under the inherent jurisdiction. The questions was, can I and if so how?”

  9. Answering the question posed in that final sentence, the President sets out his reasoning thus:

    “29. The Crown – I put the matter generally and without descending into detail or identifying any qualifications to what I am about to say – has a protective responsibility for its subjects wherever they may be, whether in this country or abroad. The correlative of this, as both Casement and Joyce ultimately discovered to their cost, is the subject’s duty of allegiance to the Crown wherever he may be, whether in this country or abroad: see The King v Casement [1917] 1 KB 98 and Joyce v Director of Public Prosecutions [1946] AC 347. As Darling J said in Casement (page 137), “the subjects of the King owe him allegiance, and the allegiance follows the person of the subject. He is the King’s liege wherever he may be”.”

    “30. Now the significance of this in the present case – I say nothing whatever of its significance (if any) in relation to the children’s parents – is that the Crown’s protective duty, as parens patriae, in relation to children extends, in the case of a child who is a British subject, to protect the child wherever he may be, whether in this country or abroad.”

  10. The emphasis in bold above is my own. What is plain is that the President is contemplating the inherent jurisdiction in the context of an individual child, casting his language in the terms of the Practice Direction 12 D (see para 17 above).
  11. In Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, Thorpe LJ made the following observations in relation to the scope of the inherent jurisdiction:

    “42. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction.”

  12. Later, Thorpe LJ reviewed the existing case law and observed:

    “I accept Mr Everall’s submission that the decision nearest in point is the judgment of Ward J in F v S (Wardship: Jurisdiction) [1991] 2 FLR 349. In that case Ward J held that where the court in wardship did not have jurisdiction under the Family Law Act 1986 to make an order in relation to a child’s care and control it should not assume inherent jurisdiction to make an order for the recovery of the child. In his judgement he categorised such an order as ‘a devious entry to the court by the back door where parliament has so firmly shut the front door’. Although his judgment was subsequently reversed on the facts, his conclusions on jurisdiction were not criticised. In my opinion by analogy there is equally no jurisdiction to make a declaration of wrongful detention in similar circumstances.”



He refutes any notion of sharp practice by Keehan J


I would wish to make it abundantly clear that I do not consider Mr. Lefteri’s application here to be ‘a devious entry to the court by the back door where parliament has so firmly shut the front door’. I most certainly do not suggest that of Keehan J either. I am, as I have been at pains to stress, entirely sympathetic to their respective objectives but as Thorpe LJ emphasises this is a jurisdiction that should be used with ‘extreme circumspection’ respectful of the role of Parliament.



But decides that use of the inherent jurisdiction to protect all children or a raft of children rather than individual named ones has finally found a limit to the inherent jurisdictions theoretically limitless powers


Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf the London Borough of Redbridge is outwith the scope of this Court’s powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in the Birmingham case.



Hayden J also points out that at the time Riaz was decided, the Sexual Risk Orders hadn’t come into force  (they’d been in the statutory powers for nearly a year but hadn’t been implemented, and they now have). So from this point on, you can use the inherent jurisdiction to protect AN individual child from risky persons, but if you want to stop those risky persons being around children, you’ll need to use the criminal jurisdiction (which is going to be the police making these applications  – underlinign as ever, mine)


  1. Serendipitously, at least for the purposes of my analysis, Parliament has now amended parts 2 and 3 of the Sexual Offences Act 2003 and the Anti-social Crime and Policing Act 2014. Section 122 A provides for the making of ‘Sexual Risk Orders’ (SRO) and outlines the Grounds on which they may be obtained and their effect:

    Sexual risk orders (England and Wales)

    122A Sexual risk orders: applications, grounds and effect

    (1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.

    (2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

    (3) A chief officer of police may make an application under subsection (1) only in respect of a person—

    (a) who resides in the chief officer’s police area, or

    (b) who the chief officer believes is in that area or is intending to come to it.

    (4) An application under subsection (1) may be made to any magistrates’ court acting for a local justice area that includes—

    (a) any part of a relevant police area, or

    (b) any place where it is alleged that the person acted in a way mentioned in subsection (2).

    (5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).

    (6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—

    (a) protecting the public or any particular members of the public from harm from the defendant, or

    (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

    (7) Such an order—

    (a) prohibits the defendant from doing anything described in the order;

    (b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.

    (8) A sexual risk order may specify different periods for different prohibitions.

    (9)The only prohibitions that may be imposed are those necessary for the purpose of—

    (a)protecting the public or any particular members of the public from harm from the defendant, or

    (b)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

    (10)Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

  2. When Keehan J heard the arguments in the Birmingham case these provisions had not come into force and accordingly, the protection that they offer was, at that stage, not available. I have been told by Mr Lefteri that an application has been made to a Magistrate’s Court in respect of SNA it is believed that the conditions for the making of such an order are met. That will ultimately be a matter for the Magistrates Court. It would seem therefore, that the protection contemplated in this application may, in due course, be available. Recognising this from the outset Mr Lefteri sought orders in this Court in an attempt to ‘hold the ring’ until orders have been made in the criminal courts.
  3. There are sound reasons why the criminal courts are the correct venue to consider the making of these orders. Firstly, and most obviously, Parliament, after proper scrutiny, has carefully defined the scope and ambit of the provisions. Secondly, notwithstanding the considerable advancements made in achieving much greater levels of transparency in the Family Court, a judge sitting in this jurisdiction will invariably have to protect the identity of the child and in order to do so, preserve, by a side wind, the anonymity of a perpetrator. I do not believe any right minded person having read my short review of the facts of this case (above) would consider it appropriate to expose this young girl to the inevitable harm of publicity. The Press, in my experience, have been assiduous in their respect of this principle.
  4. In the Criminal Courts however, the focus is different. There is now, rightly, much greater emphasis on the ‘victim’ but that is wholly different to the range of the enquiry necessary in the Family Courts. In the Criminal Court, where the liberty of the individual is in issue, the public interest in the administration of the criminal justice system must always weigh heavily. The Criminal Courts are now, frequently, able to conduct trials entirely in the public domain whilst at the same time protecting the identity of the Complainant and, where necessary, his or her relationship to the Defendant. Certainly, where the Complainant is a minor, society recognises the necessity of this measure. The family justice system is unlikely to replicate this. Thirdly, the responsibility for the policing of such orders rest with the police who are far better equipped than social services to monitor compliance




Inherent jurisdiction – extending an injunction past 18th birthday


Regular readers will probably know that I feel uncomfortable about phrases like “the powers of the inherent jurisdiction are theoretically limitless” and that cases are developing which extend the previous usage of the inherent jurisdiction a bit further, and then those cases are relied on next time around to push it a little further still.  It is mission creep, and it makes me nervous.

In this case, Baker J  (who makes my Top Five Judge list, comfortably), had to decide on a mother’s application to extend an existing injunction that prevented a father contacting his daughter or coming near her, past the child’s 18th birthday. In effect, for the rest of her life.

Re SO (a Minor) 2015


I am somewhat puzzled that the child was not represented in these proceedings, as the orders were all about her, and she was nearly 18 and thus presumably in a position to have a view even if it was felt unsuitable for her to attend Court.

The rationale behind wanting to protect the child was decent. The father had been convicted of offences of arranging to have the mother killed, and continued to deny those offences. One can see why the Court would want, while SO was a child to protect her from her father.  He is palpably not a nice man. I can absolutely see why the mother would be genuinely very fearful of him and genuinely want to protect herself and her child from him.

The issue for me, whilst not really having any sympathy for the father in this case, is whether the State, in the form of the Court should be making orders protecting SO from things as an adult on someone else’s request rather than SO making an application to the Court for protection.


The injunction sought (and made) was in these terms, and I think that these are orders that could easily have been made by way of SO making an application for a non-molestation order if she decided she wanted that protection.

“It is ordered that

(1) the respondent, whether by himself or instructing, inciting or encouraging any other person be restrained until further order from

(a) using or threatening violence or attempting the same against the applicant or S;

(b) intimidating, harassing or pestering the applicant or S;

(c) coming within a 50 miles radius of, entering or attempting to enter, any property at which he believes, knows or suspects the applicant or S to be present or living or of any educational establishment or place of work at which he believes, knows or suspects the applicant or S may attend or work;

(d) communicating or making contact with the applicant or S by letter, telephone, Skype, text message, email, any means of electronic communication, or through any social networking sights including Facebook, save through the offices of Messrs Thomson, Snell and Passmore, the applicant’s solicitors;

(2) any person on whom this order served, or who is aware of its terms, is restrained until further order from making disclosure to the respondent, or to any other person on his behalf, which would in any way identify the current whereabouts of the applicant or S, from identifying to the respondent the name or identity under which the applicant and S may be known or is currently living and/or registered;

(3) the applicant and/or her solicitors are authorised to disclose this order and any other information relating to these proceedings to:

(i) the police in the United Kingdom;

(ii) the Home Office, and any agency acting on its behalf, and any relevant government authority in Scotland;

(iii) the Department of Community Services in Australia and

(iv) the Australian Federal Police, New South Wales Police Force and any other relevant police authority and state correctional services, whether publically funded or privately managed.

An obvious question arises about the Australian element, and that might be a reason why not to use the statutory power of a Non-Molestation Order – because there might be problems with enforcing that if the father was living in Australia.  But hold on, it appears that everyone involved was living in Australia

Meanwhile the mother and S, in respect of whom of a series of non-molestation injunctions have been made within the wardship proceedings dating back to an order of Black J (as she then was) dated 14th June 2000, themselves moved some years ago to Australia, living at an address which, it was assumed, was unknown to the father. S has flourished in her mother’s care in Australia and has now embarked upon tertiary education, following the conclusion of the schedule 1 proceedings in the course of which I made a substantial order for her financial provision. Nonetheless, both the mother and S have continued to live under the shadow of the threats by the father to the safety of the mother and, indirectly, S.

[I’m somewhat mystified as to why a High Court injunction in England is the best route to protect an 18 year old girl living in Australia. It is legally permissable because:-

(4) When, as here, the court has jurisdiction at the start of wardship proceedings on the grounds that the child is habitually resident in England and Wales, that jurisdiction continues until the conclusion of the proceedings, notwithstanding the fact that the ward has become habitually resident elsewhere. That is sufficient to provide jurisdiction in this case for the making of the orders sought by the applicant. In addition, the court may have jurisdiction on the grounds that the ward is a British national. In either case, the question is, as Baroness Hale observed in Re A whether it is appropriate to exercise the jurisdiction in the particular circumstances of the case. ]

You will note from the terms of the order, which the High Court made “until further order”  (i.e possibly for the rest of the lives of those involved) that it would prevent the father replying to any attempt by his daughter to contact him.  I’m not sure if she would ever want to, but it seems odd that if she initiated contact he would be unable to respond.  Actually, SO would be in breach of this order if she contacted her father and told him her address or new name…

As a matter of law, I think that Baker J was right to rule that he had the power to make such an injunction on an adult  (I just think that the law that has laid those foundations is wrong, and built on a gradual move away piece by piece from the spirit and intent of the inherent jurisdiction. All of the individual decisions have been the Court doing what they thought was best for a person, but autonomy means that where a person has capacity they and they alone have the right to decide what is best for them. )

Let’s look at, for example, the case that set the Inherent Jurisdiction for adults hare running in the first place.

Re SA 2006  when the issue of Forced Marriage was just becoming apparent and there was not yet a statutory mechanism to protect people from it. The inherent jurisdiction had been used to prevent a minor from being forcibly married, and in Re SA Munby J (as he then was) had to decide whether that protection could continue into adulthood.

“It would in my opinion be a sad failure were the law to determine that [the court] has no jurisdiction to investigate and, if necessary, to make declarations as to T’s best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18.””

But in the same judgment, this passage appears

“There is, however, in my judgment a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.”


There’s no evidence here that SO lacks capacity to make decisions for herself about whether she wants to see her father or be contacted by him, or whether she might want to apply for legal orders to protect herself.  I am struggling to see why the Court should use its inherent jurisdiction to make an order that affects the rest of SO’s life when she has not applied for such an order.


{I can see why the desire to protect her from something that most people would just as being an unhealthy or unpleasant influence leads to the order being made, but it is not the job of the State to protect adults with capacity from unpleasant events. If SO wants to be left alone by her father and he is not likely to acquiesce to her wishes, then there’s a statutory remedy – non-molestation order. If she applies for it, the State in the form of the Court makes a decision about whether the order is justified. But here the State is deciding for someone who has capacity and is about to become 18 something that will have an impact on her life because it thinks that is what is best for her. I can also see why the mother and the Court felt that the father was so dangerous and toxic that they didn’t want to put SO through the risks of making her own application.  }


28. In my judgment, it is imperative that this court makes the order within the wardship jurisdiction, or alternatively under its inherent jurisdiction to protect vulnerable adults, extending the protection provided hitherto beyond S’s 18th birthday. In the circumstances of this case, it is essential that, in order to ensure the protection is extended for S, the mother is also kept within the ambit of the injunction.


There is nothing in the case to suggest that SO herself is  a vulnerable person, that there are any inherent characteristics in her that are vulnerable – the reason she is ‘vulnerable’ is because of external things not because she herself has any inherent vulnerability.  She is not a vulnerable person, she’s a person who happens to be vulnerable because of external factors. It might seem a trivial distinction, but I don’t think that it is.

What prevents that line of thinking becoming that the State has the power to forcibly remove a woman from a violent partner? She has capacity to decide that she wants to be with that awful man, but she is ‘vulnerable’ because of the risks that he poses, so  can the inherent jurisdiction  decide that it would be best for her to be protected from that man? The powers are theoretically limitless – if she is considered vulnerable….

A twenty year old decides to have a relationship with a fifty year old who has had some criminal convictions including drug use. Her relatives disapprove and think that she’s vulnerable to getting used and ending up being broken hearted. Is she vulnerable? Can the State be asked to make injunctions to protect her?

A sixty year old man with a large fortune falls in love with a twenty five year old. The family are worried that he is being taken for a ride and that this girl is a gold-digger. Is he vulnerable?

It isn’t problematic or unreasonable in this case to say that SO is vulnerable and needs protection, but the concern is that this case becomes cited in the next case along to make inherent jurisdiction orders about adults who have capacity to decide things for themselves, and then that next case gets cited in the one after that, and so on.  It feels like the classic slippery slope scenario.  As a matter of law now, the inherent jurisdiction is a theoretically limitless power, but should that be the case?

At the very least, when the Court is using such a theoretically limitless power, shouldn’t there be a very detailed analysis of proportionality and necessity, considering article 8 of the Human Rights Act?

ISIS and children being taken to Syria

I have to say, even after years and years of doing child protection law, I never actually thought I’d see cases in Court where parents were trying to get their children to become terrorists and fight in a war. But we are seeing these cases, and as I understand it, the reported cases are the tip of an iceberg.

If you are advising someone in this situation, or advising a Local Authority where such a thing is suspected, the President’s decision in Re M (Children) 2015 is going to be mandatory reading. It is particularly useful since it sets out in detail the orders made to protect the children and to recover them, and is an excellent route-map for future cases. Rather than drafting from scratch and having to invent what needs to be done  (and I’ve an inkling of just how hard that is in such cases), there’s now a source for how to assemble a workable order that will do the job.

There is one final point I must emphasise in this connection. It is the point made by Hayden J in the Tower Hamlets case (para 18(iv)):
“All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas.”

There’s a very good summary by Marilyn Stowe here, and I recommend that also


All agencies worked amazingly quickly and creatively to get these children back into the UK and save them from what would really be unthinkable, that they be pushed by their parents into taking up arms in a war zone.

Gilded cage – junior edition


Those of you who follow deprivation of liberty cases will be aware that the landscape is markedly different after the Supreme Court in Cheshire West.  Just how different remains to be seen, as individual cases come before the Courts and are tackled.


Keehan J was faced with a difficult concrete example of the uncertainty following Cheshire West in


Re D (A Child :Deprivation of liberty) 2015


This case involved a boy, not quite sixteen, with considerable difficulties.

D was born on 23 April 1999 and is 15 years of age. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 4, with Asperger’s Syndrome at the age of 7 and with Tourette’s syndrome at the age of 8.


He had been admitted to hospital for psychiatric treatment as a result and is just about to be discharged into a residential care setting. He had been on a locked psychiatric ward for 15 months. This is obviously a very high-end example.


In this case, as a result of the Cheshire West decision, there was considerable dispute about whether D was being deprived of his liberty and whether his parents consent to this was sufficient to allow this or whether a DoLs authorisation was required.

The hospital trust considered that DoLS authorisation was required and that to conclude that D’s parents had the right to consent to D being deprived of his liberty was too broad a view of PR.

The Local Authority considered that D’s parents were consenting, and thus this was not a deprivation of liberty in the DoLS sense.

  1. The Applicant Trust submits that the circumstances in which D lives at Hospital B satisfy the first limb of the Cheshire West test namely:

    “the objective component of the confinement in a particular restricted place for a not negligible length of time.”

  2. Further the Trust submits that D’s parents cannot consent to his placement at Hospital B because such a decision, to consent to what would otherwise amount to a deprivation of liberty, falls outside the ‘zone of parental responsibility’.
  3. Accordingly, the Trust submits the appropriate course is to seek the court’s approval of D’s placement under the inherent jurisdiction of the High Court.
  4. The local authority adopts a diametrically opposed stance. It submits that the circumstances of D’s placement do not amount to a deprivation of liberty. Further, it submits that the decision of D’s parents to consent to his placement at Hospital B falls within the proper exercise of parental responsibility. Accordingly what might otherwise constitute a deprivation of liberty does not do so because the second and third limbs of the test in Cheshire West are not satisfied namely:

    ” (b) the subjective component of lack of valid consent; and

    (c) the attribution of responsibility to the state”.

This has substantial implications – all disabled children who are receiving care from the State and whose liberty is being restricted (in order to keep them safe) on the Trust’s interpretation of Cheshire West would need to have that deprivation of liberty authorised – even if the parents were consenting. The real bad news there is that for people under 16, the Mental Capacity Act 2005 doesn’t cover them and such deprivation of liberty would have to be authorised under the Children Act 1989.  Which means, to spell it out, placing all of those disabled children in Secure Accommodation.


Which also means making Court applications. Which also means the residential homes that are caring for these disabled children needing to go through the registration process to qualify as Secure Units.


It is an interpretation of Cheshire West which does make logical sense from the judgment, but which has immensely worrying consequences. Not least that the Secure Accommodation provisions might well not be met for these children and the alternative would be that carers at the residential units would thus have no power to restrict the children’s movements  (for example, not being able to stop them from running into the road)


[I note that Keehan J in this case specifically rules that the High Court can authorise deprivation of liberty for children under the inherent jurisdiction. I’m really rather dubious about that. I know the inherent jurisdiction is a magic bullet for every situation with almost limitless powers, but to use it to sidestep s25 Secure Accommodation provisions seems to me to have real difficulties with s100 – particularly s100 (4) (a) which bars granting leave to a Local Authority to make an application under the inherent jurisdiction if there is a statutory order the LA could apply for instead, and s100 (4) (b) which says that leave can’t be granted unless the Court is satisfied that significant harm would result to the child otherwise. Would anyone ever appeal it? probably not. ]


Any Local Authority lawyer dealing with deprivation of liberty or disabled / disturbed children is really really nervous about how this case is going to turn out. It is a big test case.

Here’s the practical arrangements for D, to consider whether they amount to a deprivation of liberty

Dr K describes D’s life at Hospital B as follows:

“D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service.”

“D’s unit is staffed 24 hours a day.

It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.

D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.

D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.

His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.

He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.

Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.

When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this.”


That does seem, from Cheshire West, to be deprivation of liberty, and indeed Keehan J found it to be so, and all parties accepted that those circumstances did amount to a deprivation of liberty following Cheshire West.

In the ultimate analysis counsel for the Trust and counsel for the local authority accepted that the circumstances in which D was accommodated amounted to a deprivation of liberty subject to the issue of consent to the placement.

On the facts of this case I am wholly satisfied that D lives in conditions which amount to a deprivation of his liberty. He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.


The issue then, was whether the parents could consent to D’s liberty being deprived in this way.

  1. Mr Cowen, on behalf of the local authority sought to contend that:

    i) Cheshire West did not apply to those cases where the young person concerned was under the age of 16 years;

    ii) in such a case the decision in Cheshire West, that the disability or mental disorder of the young person concerned was irrelevant to the question of whether there was a deprivation of liberty, did not apply; and

    iii) the court should prefer and apply the ‘relative normality’ test propounded by the Court of Appeal in P and Q.

  2. I do not accept any of those propositions. The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but ‘the starting point should be the same as that for everyone else’, per Baroness Hale: Cheshire West at paragraph 45.
  3. The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.
  4. I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.
  5. In the premises I do not accept the local authority’s third submission that I should reject the approach of the Supreme Court in Cheshire West and apply the Court of Appeal’s test of ‘relative normality’. I do not understand the logic of the submission that I should hold that the decision of the Supreme Court does not apply to the facts of this case but then resurrect and apply the test propounded by the Court of Appeal which was expressly rejected by the majority of the Supreme Court.
  6. The essential issue in this case is whether D’s parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied).


That’s quite dense, so I’ll walk you through it. The argument was that Cheshire West, being a Mental Capacity Act case, doesn’t strictly apply to minors. The Judge said that this was right, but that the Supreme Court’s acid test as to what sort of restrictions amounted to a deprivation of liberty DID apply also to children, and that the Local Authority’s argument that the restrictions in place for D were the sort of restrictions that a child like D would have (relative normality) was exactly the decision reached by the Court of Appeal in Cheshire West that had been rejected.

When considering whether D’s liberty had been deprived, his physical or mental disabilities were not a relevant factor  – they might well be relevant when later considering whether those restrictions were the right thing for him but not at the stage of considering whether they amounted to a deprivation of liberty.

The argument that children like D need these restrictions, so they aren’t a deprivation of liberty in the way that they would be for a child who didn’t have D’s issues was completely rejected by the High Court.

The sole issue was whether the parents could exercise parental responsibility to CONSENT to those restrictions, thus making the deprivation of liberty one that was effectively consented to, and thus not a breach of Article 5.  IF the parents could consent, then there would not NEED to be a court order or declaration to justify the article 5 breach, since the restrictions would be by consent and the breach would fall away.


Mr McKendrick for the Trust set out the arguments for why the Trust considered that the parents could NOT consent.  (I have to confess that in reading this, much as I want the LA to win this argument and so much rides on it, I was thinking that Mr McKendrick’s points were right)

48. Mr McKendrick reminds me that Dr K does not consider D to be Gillick competent to consent to his residence, treatment or care. He referred me to the provision of the new MHA Code of Practice which comes into effect on 1 April 2015. Paragraphs 19.47 – 19.48 provide:

      1. 19.47 An additional and significant factor when considering whether the proposed intervention in relation to a child or young person is a restriction of liberty or amounts to a deprivation of liberty is the role of parental control and supervision. Practitioners will need to determine whether the care regime for, and restrictions placed on, the child or young person accord with the degree of parenting control and supervision that would be expected for a child or young person of that age. For example, whereas it is usual for a child of under 12 years not to be allowed out unaccompanied without their parent’s permission, this would not usually be an acceptable restriction on a 17 year old. Account also needs to be taken of the particular experience of the child or young person. For example, a younger child who has been caring for their parent, including shopping for the household and/or accompanying their parent to medical appointments, might not be used to being prevented from going out unaccompanied.
      1. 19.48 Prior to the Supreme Court’s judgment in Cheshire West, case law had established that persons with parental responsibility cannot authorise a deprivation of liberty. Cheshire West clarified the elements establishing a deprivation of liberty, but did not expressly decide whether a person with parental responsibility could, and if so in what circumstances, consent to restrictions that would, without their consent, amount to a deprivation of liberty. In determining whether a person with parental responsibility can consent to the arrangements which would, without their consent, amount to a deprivation of liberty, practitioners will need to consider and apply developments in case law following Cheshire West. In determining the limits of parental responsibility, decision-makers must carefully consider and balance: (i) the child’s right to liberty under article 5, which should be informed by article 37 of the UNCRC, (ii) the parent’s right to respect for the right to family life under article 8, which includes the concept of parental responsibility for the care and custody of minor children, and (iii) the child’s right to autonomy which is also protected under article 8. Decision makers should seek their own legal advice in respect of cases before them. (Chapter 26 provides guidance on the use of restrictive interventions.)
  1. The Trust submitted that D’s parents cannot consent to a deprivation of his liberty in Hospital B for 11 reasons: i) D has the same Article 5 ECHR rights as an adult and the same definition of deprivation of liberty applies to him as it does to adults;

    ii) D has a mental disorder, he is deprived of his liberty pursuant to Article 5 (1) (e) – see Cheshire at paragraph 6, per Baroness Hale: “Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL”;

    iii) D has been resident on a locked psychiatric ward for fifteen months;

    iv) D can only leave that ward with adult 1:1 supervision;

    v) whilst his parents consented to his placement, such consent much be seen in the context they could not accommodate him at their home;

    vi) he does not lead a life of relative normalcy;

    vii) D is fifteen and shortly will be afforded the protection of the MCA to authorise and review any deprivation of liberty occasioned by being deprived of his liberty at Hospital B (by way of application of s. 4A MCA, given Schedule A1 would not apply to him until he is 18);

    viii) to rely (effectively solely) on parental consent, when D’s parents cannot accommodate and care for him (and have no or other limited options for their son) is an insufficient safeguard to protect D’s Article 5 ECHR rights;

    ix) parental consent over a period of fifteen months, as means of review and safeguard, is not compliant with Article 5 (4);

    x) it is out with the reasonable zone of parental control to authorise the deprivation of liberty for such a prolonged period of time and is inconsistent with a child’s Article 5 ECHR right;

    xi) hospital clinicians remain uneasy about caring for and depriving a child of his liberty, given the length of time and given his age, with only authority provided by way of parental consent.

  2. The Trust concludes its submissions as follows:

    The applicant recognises there may be cases where parents can authorise the deprivation of liberty of a younger child for a shorter period of time, in a hospital setting. The applicants are not certain the concession approved by the court in RK is correct. Indeed it seems clear parents can authorise the first stage of the deprivation of liberty test (i.e. they can deprive, rather than just restrict, the liberty of their children, at home) but that such deprivation is not an Article 5 deprivation of liberty, because it is not attributable to the state. Each case ultimately must be considered on its facts (however unpalatable such an approach may be in respect of public resource considerations).

    Whilst the applicant (in many ways) would gratefully submit that D is not deprived of his liberty, it does not consider it is appropriate for a public body to interpret the law in a manner disadvantageous to the protection of a vulnerable child’s rights. Whilst the applicant would readily adopt a “pragmatic approach” as identified by Gross LK in RK, the applicant submits the preferred conclusion, on the facts of these proceedings, is that D is deprived of his liberty, such deprivation is attributable to the state and his parents cannot provide valid consent.


Powerful stuff.

Here comes the decision.

  1. When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
  2. An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
  3. The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
  4. The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
  5. I acknowledge that D is not now cared for at home nor ‘in a home setting’. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?
  6. Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D’s best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents’ role to make informed decisions about their son’s care and living arrangements?
  7. I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D’s life or that of his family.
  8. I accept the position might well be very different if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.
  9. The position could not be more different here. D’s parents have regular phone calls with him. They regularly visit him at the unit. Every weekend D has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother.
  10. In my judgment, on the facts of this case, it would be wholly disproportionate, and fly in the face of common sense, to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility. Conclusions
  11. I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents’ consent to his placement there.
  12. I am satisfied that, on the particular facts of this case, the consent of D’s parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the ‘zone of parental responsibility’. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement.


So whilst for D, a gilded cage is still a cage and one doesn’t take into account his disabilities, whether or not his parents are able to consent to him being in that cage is a decision that CAN take into account his disabilities.


Child Sexual Exploitation (Birmingham injunction case)


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.

  1. 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.
  2. 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.
  3. 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.

  4. In Re M and N (Minors) [1990] 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”.

  5. 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)


Turning the pole vault into a limbo contest – watch Hayden J reset the bar

In which I applaud Hayden J for sticking both his neck out, and his finger in the dyke.
Re DM 2014

Re DM was one of those cases where a Local Authority go to Court BEFORE a child is born, to say that they intend to issue care proceedings with a plan of separation at birth and that they want the Court’s permission not to tell the parent of this plan.

This peculiar application, well-described by Hayden J as “anticipated declaratory relief” emerged from the decision of our President in Re D (also Bury MBC and D) 2009

That case turned on utterly extraordinary facts.

The mother was serving a custodial sentence in relation to an incident that took place at a supervised contact session with her daughter, in which she had pounced on the child, blindfolded her, gagged her, pinned her to the floor and threatened her with a knife. A Care Order and a Placement Order facilitating adoption had subsequently been made in respect of that child.

In the period that followed that incident, the mother continued to demonstrate a high level of extreme distress and highly challenging behaviour. This included, for example, an attempt to take her own life in highly alarming circumstances, in her cell. Such was the level of harm that she presented to herself that, whilst in prison, she was placed on a regime of 15 minute watch.

The local authority had considered the circumstances with very great care and fretted over what the best way forward might be. A report, one of many that the local authority commissioned, recorded that the mother had expressed the view that all her children would be better off dead than in the care of the Local Authority. ‘Reunification after death’ was something that the mother made frequent reference to; she saw that as the only solution to her dreadful problems.
The Local Authority in that case (Bury) were in a spot. They knew that they intended to issue care proceedings and seek removal of the child once born, and they also knew or considered that telling the mother of that in advance would jeopardise the life of the baby. They therefore took an unusual step of making an application in the High Court under the inherent jurisdiction for a declaration that NOT telling the mother of the plan would not breach their duties to her or her human rights.

The difficulty, of course, is that the mother is not told of the application and has no chance to put her own position before the Court AND of course, when the application for an EPO is made, no doubt that Court is told that in effect the High Court has already nodded approval of the plan.

In Re D it was conceded by counsel on behalf of the Applicant that the power that the court was being asked to deploy were “at the very extremities of convention rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950”. The apparatus of the declaratory relief was put into place, recognising that those moments immediately after the birth of the baby rendered him almost uniquely vulnerable, in circumstances which were likely to be very rare indeed. They were circumstances so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify that extraordinary level of intervention. It was, and I emphasise, a wholly exceptional case. Such intervention, because it is such a powerful restriction of a woman’s autonomy, must always be regarded as draconian. The Courts and Local Authority must be vigilant to ensure that the wholly exceptional nature of this relief is never lost sight of.

When Bury/Re D was reported, most professionals thought that those circumstances would never arise again. But as I have blogged, these applications have become more common.

And I have been worried that the exceptional and dramatic circumstances of Re D have been translated into similar declarations in much less dramatic circumstances – and that they often involve cases where the mother either lacks capacity or has profound mental health problems (i.e where her vulnerabilities require even more protection from the power of the State)

I am pleased to see that Hayden J agrees with that, and says so.

This is the first reported Re D type application that has been refused, and hopefully that will staunch the flow of these.

My attention has been drawn to a number of recent decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW [2014] EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG [2014] EWCOP 30 and X County Council v M, F & C [2014] EWHC 2262 (Fam).

In NHS Trust 1 & NHS Trust 2 v FG, Keehan J was persuaded by the Official Solicitor to give guidance generally in relation to the making of urgent applications in respect of women who lack capacity or who appear to lack capacity in the final stages of pregnancy. Those circumstances are very different to the kind of application contemplated here. I do not believe that Keehan J in any way intended to weaken the test set out by Munby J in Re D, which I have been at pains to reinforce. That said nothing I say should infer that respect for and active promotion of the personal autonomy of an incapacitated adult is any less vital. On the contrary it is every bit as exigent.

Applications, such as that contemplated here, will arise only rarely. The facts will always be case sensitive. However, to invoke the declaratory relief initially canvassed, the facts will, as I have said, require a level of ‘exceptionality’ and will be characterised by the ‘imperative demands’ and in the ‘interest of safety’ of the newborn baby in the period immediately following its birth. Beyond this, it is, I believe, unhelpful to try to be more prescriptive.
On the particular case in question
I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived. This woman will, I am satisfied, have contemplated the real difficulties that are likely to arise upon the birth of this child. I am also satisfied that she will, perhaps to a large extent, have anticipated the local authority’s plans. She is a capacitous woman and she will feel more acutely than any other the sad history of her past. It is idle to pretend otherwise.

Moreover, it is quite possible to keep the mother and baby together in a manner that respects the mutual need each for the other in the period immediately following the birth, which is the spotlight of concern. That can be achieved in a manner which respects both the emotional needs and the safety of the baby, even if that requires a high level of intervention in a plan that might inhibit the kind of interaction that most mothers and babies would enjoy following the birth. This has the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court can hear the inevitable applications.

Though I have described the Local Authority’s application as misconceived I think it is important, nonetheless, to observe that professionals involved in these difficult decisions provide a huge service both to the women and babies they deal with and also to society more widely. This case illustrates the challenges they face and the debt that we all owe to them.

What is wardship?


I suspect that there will be a few people, including some journalists, who want to understand what Wardship is today.  (If it is okay, I’m going to try not to say too much about Aysha King specifically today, because the case is now before the Court and hasn’t been decided – the case is now in the High Court, a wardship order has been applied for and the Judge Mr Justice Baker has adjourned the case until Monday, to give the parents time to get lawyers and put their own position before the Court. But I will touch on what these things might mean for the King family at various points)


What is wardship?


If you aren’t a family lawyer, the only time you’ll have come across someone being a Ward is Dick Grayson being Bruce Wayne’s ward. (which seemed to involve very little in the form of care and nurture and much more in the form of dressing up garishly and fighting armed goons)

Wardship is quite an old phenomenon whereby a High Court Judge makes decisions about what is best for a child and no significant steps can be taken in relation to that child without the Court approving it. They were very common pre Children Act 1989 and were at that stage a creation of common law (i.e the law about Wardship was invented and adapted by Judges, rather than having been a law invented by Parliament and set down in an Act)


In fact, pre Children Act 1989 they were often a route for children being taken away from parents and placed into the care of a Local Authority.  (there was a power in the Family Reform Act 1969 to let them do just that, so the power kicked around for twenty years)


{Edit – am grateful to David Burrows for advising me that the child becomes a ward of Court on issue of the application, though the Court can of course decide whether that continues once they hear the case}


What are the powers of Wardship?

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”


The Practice Direction 12 D is quite helpful in explaining Wardship
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 statute. 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.


[You can see that (c) and (e) are pretty relevant to Aysha’s case]

Let’s look at it this way – the Children Act is like Batman – there are all sorts of powers and tools and gadgets in there, but they are all prescribed and laid out. You know if you bump into Batman that he has fighting prowess and Batarangs and Shark Repellent. But he can’t suddenly fly or shoot laser beams from his eyes or lift up a train. There are limits to Batman’s capabilities and we know what they are.  The Inherent Jurisdiction is more like Superman –  he can do pretty much anything you can think of (including, if you rely on the movies, flying around the world backwards to turn back time…  LET IT GO, Suesspicious Minds, get over it)


And just like Superman, Inherent Jurisdiction has huge power, but it also has Kryptonite


What can’t be done under wardship?


When the Children Act 1989 was being devised, there were people who wanted to get rid of wardship altogether, but they were finally persuaded to keep it, but to put into the Children Act 1989 a limit to its power.


s100 Children Act 1989 Restrictions on use of wardship jurisdiction.

(1)Section 7 of the M1Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)The court may only grant leave if it is satisfied that—

(a)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

(b)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.

(5)This subsection applies to any order—

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).



English please?


(i) The Court can’t use wardship to put a child in the care of the Local Authority.  That is important because otherwise it would let Judges put children into care even where the threshold criteria for making Care Orders wasn’t met.    [For Aysha’s case, that means that even if the Court make a wardship order, that does not amount to the child coming into care]

(ii) The Court can’t make a wardship order and then say “Local Authority, you make the decisions, I’ll leave it to your discretion”  – if there’s a wardship order, the High Court have to make the individual decisions

(iii) The Court can’t use wardship to do something that could be achieved by any other power in the Children Act   (i.e if you can get the job with Batman, Superman won’t be able to show up and help even if you prefer Superman)


Also, although this is not spoken of very often, all of the Human Rights Act provisions apply to wardship cases – so there is the article 6 right to fair trial and the article 8 right to private and family life which means that wardship can only be made if it is PROPORTIONATE and NECESSARY.    [There’s an intriguing section of the Supreme Court judgment in Re B, where Lord Neuberger is talking about article 8’s “necessary” test and says that for those purposes he adopts Lady Hale’s formulation of “nothing else will do”   – that doesn’t seem to have been picked up on generally yet to the extent that it was picked up on for Adoption cases]


Who can apply for wardship?


As you can see from the Kryptonite section, the Local Authority can apply, but ONLY if they can satisfy the Court that there is reasonable cause to believe that failure to apply would be likely to cause significant harm to the child. That is not an easy hurdle to cross – particularly since if that test applies they would have remedies under the Children Act 1989  (Emergency Protection Order, Interim Care Order, Recovery Order)

They can also be issued by a connected person, generally a parent  – and that’s usually where there’s a fear of abduction of the child to another country or an attempt to get the child returned.

Wardship applications can, and have, been issued by hospital Trusts seeking a declaration from the Court about medical treatment for a child, and that’s probably what has happened in Aysha’s case.

It is theoretically possible that the police could apply, but I’ve never come across such a case.  They might be reluctant to do so, since making the child a ward of Court means that the child can’t be interviewed without approval of the Court.


When does wardship run out?


It runs for as long as the Court want it to last, but the longest it can last is until the child is no longer a child. There aren’t any formal applications to discharge or revoke a Wardship order, but in practice, a person would seek a hearing before the High Court to persuade the High Court that wardship was no longer needed.


What about getting free legal advice?


This is a tricky question. If there’s an application for care proceedings, then the parent automatically gets what is called “non means, non merit” public funding  – what does that mean? Well, it means that a parent gets free legal advice and representation to fight the case even if they are a millionaire  (non means) or even if someone looking at the case would think that their argument is poor (non merits)

The next tier of public funding is those matters set out in Schedule 1 of LASPO  which can get public funding if they meet a means and merit assessment. Wardship is NOT in there.

Eep. What now?

Well, the final tier is Exceptional funding under s10* of LASPO.  If you are a lawyer, you are already wincing. This allows the Legal Aid Agency to grant free legal advice to exceptional cases where not having free legal advice would breach a person’s human rights.  Hardly ANY of these have been granted.

In the last year, of 821 applications, 8 were granted. And only 4 for family cases.


Even if you could get public funding on exceptional circumstances – well the bad news is that that is still means tested.  What does that mean? Well, it means that if you have capital over £8000, you can’t get free legal representation.

(If you are wondering, yes, the Legal Aid Agency would treat all of the King family’s savings, and any donations for the treatment fund as capital.  It is not money that they would disregard or ignore. At the moment, this case is a police/nhs scandal, but it is about to become a legal aid scandal too)


What are your options if you CAN’T get free legal advice?


You could represent yourself. Not ideal in the High Court, dealing with life-changing and complicated things.

You could arrange a McKenzie Friend. There are some good and helpful ones, but a stand-alone wardship case is really very difficult.

You could contact the bar pro bono unit  (there are lawyers who will represent you for free.

Or you could instruct lawyers paying privately and hope to win the case and get a costs order against the applicant. Cost orders aren’t easy, since if the applicant made the application in good faith and has not behaved dreadfully, it isn’t as simple as just “If there’s no wardship order the other side will have to pay costs”   – having said that, in a case like this, where the parents would be spending money that they want to spend on treatment, there might well be a sympathetic consideration of any costs application.




*{corrected, from s11 LASPO, my mistake. Thanks to David Burrows for spotting it}


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