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.
- 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.
- 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.”
- 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.
- 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  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  UKSC 67.
- 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  1 FLR 293.
- 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.
- 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.
- 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)  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?”
- 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  1 KB 98 and Joyce v Director of Public Prosecutions  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.”
- 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).
- In Al Habtoor v Fotheringham  EWCA Civ 186,  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.”
- 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)  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)
- 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.
- 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.
- 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.
- 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