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IN
THE
COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM HIGH COURT (FAMILY DIVISION)
His Honour Judge Furness QC, sitting as a judge of
the
High Court
CF 17 P 00290
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
23 November 2017 |
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE DAVIS
and
LORD JUSTICE HICKINBOTTOM
____________________
Between:
____________________
Mr Dominic Boothroyd (instructed by Merthyr
Tydfil
County Borough Council) for
the
Appellant
Neither
Respondent
attended or was
represented
Hearing date: 7 November
2017
____________________
HTML VERSION OF JUDGMENT APPROVED
____________________
Crown Copyright ©
Lord Justice McFarlane:
This
appeal concerns
the
extent
to
which a family court may exercise its jurisdiction
to
grant a non-molestation injunction under
the
Family Law Act 1996
to
protect a
child
who is
the
subject of a full care order.
The
care order, which was made in February 2013,
relates
to
a girl, who is now aged 10 years. Her care plan has always been for placement in long-
term
foster care and since November 2013 she has
resided
with
the
same foster parents. Unfortunately
the
child's
mother and her partner, Mr JM, have never accepted
the
validity of
the
care order and, at various
times,
they
have embarked upon serious attempts
to
abduct
the
child
from her carers; one such attempt formed one of
the
grounds upon which
the
threshold
criteria in
the
Children
Act 1989, s.31 were satisfied at
the
time
that
the
original care order was made. Criminal proceedings followed and
the
mother was convicted of an offence of conspiracy
to
abduct
the
child
for which she
received
an 18 month prison sentence in 2013.
- Prior
to
being placed with her current foster carers,
the
child
had had
to
be moved from
two
previous foster homes because of
the
actions of her mother, supported by Mr JM.
- A further complicating feature of
the
case, which, in combination with
the
mother's dogged determination
to
remove
her daughter from care, leads
the
local authority
to
hold a high level of concern, is
the
fact
that
Mr JM has a significant and ongoing criminal
record
involving offences of serious violence.
The
present appeal
relates
to
orders made by His Honour Judge Jonathan Furness QC on 31 March
2017.
On
that
occasion
the
judge granted
the
local authority an injunction under
the
inherent jurisdiction of
the
High Court
restricting
the
geographical movements of
the
mother and Mr JM so as
to
prevent
them
from coming
to
any part of
the
western side of
the
county in which
the
child
lives,
the
boundary being delineated by one of
the
major national motorways.
That
injunction had become necessary, and geographically specific, because by
that
time
the
mother and Mr JM had
traced
the
foster home and had, as
the
judge found, frequently visited
the
area whilst expressing an active intention
to
abduct
the
child.
This
appeal, which is brought by
the
local authority, does not
relate
to
any part of
the
injunction granted under
the
inherent jurisdiction for which it had applied. Neither is
there
any appeal before
the
court with
respect
to
the
judge's findings as
to
the
underlying facts. It is,
therefore,
neither desirable nor necessary for me
to
say any more about
those
aspects of
the
background in
this
judgement.
Focus of
the
Appeal
The
issue which brings
the
local authority before
this
court is
their
desire
to
obtain a non-molestation order for
the
benefit of
this
child
so as
to
establish a clear power for
the
police
to
arrest
the
mother and/or Mr JM in
the
event of any breach of
that
order.
- Both
the
local authority and Judge Furness rightly accepted
that
long-standing authority in
this
court, namely
Re
G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 583, established
that
there
was no power within proceedings under
the
inherent jurisdiction (whether in wardship or not) for
the
court
to
attach a power or arrest
to
an injunction in
the
absence of any statutory authority
to
do so.
- So far as
the
jurisdiction of
the
Family Court is concerned,
the
relevant
statutory authority is
the
Family Law Act 1996, Part 4. As originally enacted FLA 1996 made provision, by section 47, for a power of arrest
to
be attached
to
one or more parts of a non-molestation or occupation order made under
that
Act. FLA 1996, s.47 was, however, subsequently
repealed
and
replaced
by
the
provisions of
the
Domestic Violence, Crime and Victims Act 2004, which came into force in July 2007. Arrest is now governed by FLA 1996, s.42A(1) which was inserted by
the
2004 Act and which provides
that
"a person who without
reasonable
excuse does anything
that
he is prohibited from doing by a non-molestation order is guilty of an offence". Breach of a non-molestation order is
therefore
now a matter of criminal law in
relation
to
which
the
police may
take
action, including, where appropriate exercising
their
ordinary powers of arrest.
Non-Molestation Order
- Having apprehended
that
it was not possible
to
obtain a power of arrest
to
support any injunction granted upon
their
application under
the
inherent jurisdiction,
the
local authority facilitated an application by
the
child's
foster parents for a non-molestation order under
the
1996 Act. It was, however, accepted before
the
Judge
that
such an application was bound
to
fail. Save for
the
court's power
to
grant an injunction within
the
existing "family proceedings" under s.42(2)(b),
the
Family Court's jurisdiction
to
make a non-molestation order is limited by s.42(2)(a)
to
an application for such an order which is "made….by a person who is associated with
the
respondent".
The
existence of such an association is defined by section 62(3) and is confined
to
the
ten
factual connections which are listed
there.
The
circumstances of
these
foster carers cannot
to
be said
to
be 'associated' with
the
respondents
within any of
the
ten
statutory categories and
thus
the
foster carers' application under
the
1996 Act was dismissed.
- Although
there
was no other formal application under
the
1996 Act before
the
court,
the
local authority nevertheless submitted
that
the
judge should make an order on
the
basis
that
the
court was seized of "family proceedings", namely
the
local authority's application under
the
inherent jurisdiction, and
that
the
child
was "a
relevant
child"
for
the
purposes of s.42(2)(b) which gives a court power
to
make a non-molestation order if it considers
that
to
do so would be for
the
benefit of
the
relevant
child
even
though
no application for such an order has been made.
- In
the
course of an obviously careful and conspicuously clear judgement, and despite his manifest concern as
to
the
activities of
the
mother and Mr JM, Judge Furness
rejected
the
local authority's invitation
to
make such an order for
two
basic
reasons.
The
first
reason,
which is expressed by
the
judge in
terms
of
reticence
rather
than
a statement of a clear ground for
refusing
to
make
the
order, is stated as follows at paragraph 79 of
the
judgement:
"79…
this
would give a rather strange
result
that
there
was no power
to
make a non-molestation order but, once permission was given
to
invoke
the
inherent jurisdiction,
then
family proceedings existed within
the
Family Law Act 1996 and such an order could be made for
the
benefit of a
relevant
child,
making
the
proceedings under
the
inherent jurisdiction
redundant.
It leaves me somewhat uncomfortable about using
the
inherent jurisdiction only
to
provide a power within a different statute."
The
judge's second
reason,
and as I
read
the
judgement
this
was
the
determinative factor leading him
to
reject
the
local authority's invitation,
related
to
the
definition of "molestation" and is expressed as follows:
"81…
the
provision is designed
to
prevent molestation. "Molest" is not further defined but has been
taken
to
mean "pester" or conduct which constitutes such a degree of harassment as
to
call for
the
intervention of
the
court; C v C [2001]
EWCA
Civ
1625.
The
court cannot make a non-molestation order unless
there
is evidence of molestation.
82 In
the
present case
there
is evidence of watching, observing,
researching
habits and passing notes which are unsettling and disturbing but which have not actually been seen by [
the
child].
I am not convinced
that
this
constitutes molestation
to
justify an order under
the
Family Law Act 1996.
83 Accordingly I have come
to
the
clear conclusion
that
it would be stretching
the
legislation beyond a permissible margin
to
make an order under
the
Family Law Act 1996."
The
Statutory Context
- Although, in describing
the
issue, I have effectively
referred
to
the
relevant
statutory material, it is helpful
to
set it out in full at
this
stage.
- FLA 1996, s.42, deals with "non-molestation orders". By s.42(1) it is provided
that:
"In
this
Part a "non-molestation order" means an order containing either or both of
the
following provisions:
(a)…
(b) provision prohibiting
the
respondent
from molesting a
relevant
child."
The
jurisdiction
to
make a non-molestation order is set out in s.42(2):
"
The
court may make a non-molestation order:
(a) if an application for
the
order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with
the
respondent;
or
(b) if in any family proceedings
to
which
the
respondent
is a party
the
court considers
that
the
order should be made for
the
benefit of any other party
to
the
proceedings or any
relevant
child
even
though
no such application has been made."
The
term
"family proceedings" in FLA 1996, Part 4 is defined in s 63(1) as meaning proceedings 'under
the
inherent jurisdiction of
the
High Court in
relation
to
children'
or 'under
the
enactments mentioned in [s 63(2)]', which contains a comprehensive list of family proceedings.
- FLA 1996 s.42A establishes
the
criminal offence of breaching a non-molestation order. A conviction for such an offence can be punished with a sentence of up
to
5 years imprisonment.
- FLA 1996, s.62(2) defines "
relevant
child"
as follows:
"In
this
Part "
relevant
child",
in
relation
to
any proceedings under
this
Part means:
(a) any
child
who is living with or might
reasonably
be expected
to
live with either party
to
the
proceedings;
(b) any
child
in
relation
to
whom an order under
the
Adoption Act 1976,
the
Adoption and
Children
Act 2002 or
the
Children
Act 1989 is in question in
the
proceedings; and
(c) any other
child
whose interests
the
court considers
relevant."
In
relation
to
the
present case it is s.62(2)(c) which is said
to
apply.
- FLA 1996, s. 62(3) lists
the
ten
statutory connections by which 'a person is associated with another person' for
the
purposes of
these
provisions. It is not necessary
to
set
the
list out here, but it is important
to
stress
that
in none of
these
relationships
is it a
requirement
for one of
the
associated persons
to
be a
child.
The
local authority's submission is straightforward.
The
authority's application for an injunction under
the
inherent jurisdiction was properly constituted before
the
court following
the
grant
to
them
of leave
to
do so under
Children
Act 1989, s. 100 by Her Honour Judge Parry on 24 February
2017.
The
jurisdiction had already been exercised both by Judge Parry, who granted a wide ranging interim injunction, and
then
by Judge Furness who granted a similar injunction in wide
terms
which was
to
run for
the
remainder
of
the
child's
minority, subject
to
the
right of any party
to
apply
to
vary of discharge it.
The
court
therefore
had before it validly constituted "family proceedings"
to
which
the
mother and Mr JM were
respondents
and with
respect
to
which
the
child
was "a
relevant
child".
It is submitted
that
section 42(2)(b)
therefore
gave
the
court
the
power
to
make a non-molestation order for
the
benefit of
the
child
"even
though
no such application [had] been made".
"Molestation"
- In
the
present case
the
behaviour of
the
mother and Mr JM has fallen short of involving any direct interaction between either of
them
and
the
child,
or for
that
matter
the
foster carers. Despite serious and
repeated
attempts
that
they
have made
to
communicate with
the
child
and, if possible,
to
remove
her from foster care,
the
child
has not seen
them,
spoken
to
them
or otherwise
received
any communication from
them.
Nevertheless
the
knowledge
that
the
mother and/or Mr JM have behaved as
they
have done and have done so with
the
intent of gaining unauthorised access
to
the
child
and, if possible, abducting her, has led
the
foster carers and
the
child
to
live
their
day
to
day lives on a very
restricted
basis. A statement from
the
foster carers dated 21 March
2017,
which was before
the
judge, describes
the
impact on
their
lives from knowing
that
the
mother and Mr JM have discovered a good deal of information about
them.
The
statement included
the
following:
"…We are also aware
that
during
the
recent
hearing (8 March
2017)
Mr [JM] gave evidence
to
the
court which suggests
that
he and
the
mother have acquired a great deal of information about us and have made a practice of
researching
our lives and activities. Despite our details having been given
to
only a limited number of professionals we understand
that
mother and her partner have details of our names, address and business, as well as our daily routines and activities. We do not know of any
reason
why
they
would have sought out
this
information other
than
as a means of
trying
to
gain access
to
[
the
child].
We
remain
completely committed
to
caring for [
the
child]
but
the
activities of [mother and Mr JM] are very frightening and unsettling and constantly in our minds. We can never be sure
that
she is entirely safe or whether someone is watching her or us.
5
The
situation impacts mostly on [
the
child]
as she cannot attend her after-school activities. We have
to
risk-assess everything. She has missed out on sleepovers and birthday parties. We cannot leave her with anybody due
to
the
situation so
that
puts immense pressure on us both if we have
to
go for a simple appointment….
The
only
respite
we get is on holiday where we can let our guard down a little and allow [
the
child]
a bit more freedom….
6 We are constantly on guard and have
to
keep [
the
child]
within our sight. We are also worried about our own safety, [
the
child's]
safety and members of our family.
The
mother and Mr JM are obviously aware of our daily routines so we are vulnerable. We can'
t
allow [
the
child]
to
play outside or ride her bike. We have
to
take
her into school and collect her at
the
end of
the
day which makes her different as we cant' drop her off and allow her
to
go into school on her own as happens with other
children
of her age and developing maturity. We
try
to
carry on as normal but are always on high alert….Following
the
recent
incident [
the
child]
was angry
that
she might have had
to
miss a school
trip
as a
result
of her mother's actions. From her point of view, she simply sees
that
her mother's behaviour is placing
restriction
on her activities."
The
1996 Act does not contain any definition of "molestation". When called upon
to
do so,
this
court has consistently avoided giving a precise definition. In Horner v Horner [1983] 4 FLR 50 Ormerod LJ said, at page 51 G :
"… I have no doubt
that
the
word "molesting"…does not imply necessarily either violence or
threats
of violence. It applies
to
any conduct which can properly be
regarded
as such a degree of harassment as
to
call for
the
intervention of
the
court."
- In like
terms
Sir Stephen Brown, President of
the
Family Division, in C v B (Non-molestation order: Jurisdiction) [1998] 1 FLR 554 :
"…
There
is no legal definition of "molestation". Indeed,
that
is quite clear from
the
various cases which have been cited. It is a matter which has
to
be considered in
relation
to
the
particular facts of particular cases. It implies some quite deliberate conduct which is aimed at a high degree of harassment of
the
other party, so as
to
justify
the
intervention of
the
court."
- In C v C [2001]
EWCA
Civ
1625 Lady Justice Hale (as she
then
was) held
that
the
granting of a non-molestation injunction was justified in circumstances where
the
conduct complained of "was calculated
to
cause alarm and distress
to
the
mother."
- In
the
decades
that
have followed
those
judicial utterances
those
sitting in
the
Family Court have, on a day by day, case by case, basis, deployed good sense and judgement in determining whether or not particular conduct amounts
to
"molestation". In my view
this
court should continue
to
be very wary of offering any further precision in
the
definition.
- Mr Dominic Boothroyd, who has presented
the
local authority's case in an attractive, clear and properly measured fashion, accepts
that,
subjectively,
the
mother is unlikely
to
have intended
to
cause
the
child
harm by her actions or
those
of Mr JM. Intention is not, however, he submits, a necessary element in establishing conduct which amounts
to
"molestation". It is sufficient if
the
conduct is deliberate and
that
it has
the
consequence of causing or being likely
to
cause distress or "harassment"
to
the
child.
The
Respondents
- Despite
the
fact
the
local authority was granted permission
to
appeal with
respect
to
the
non-molestation order on 19 July
2017,
neither
the
mother or Mr JM have submitted any document or other
response
to
the
substance of
the
appeal.
The
mother has, however, used
the
currency of
the
present appeal proceedings
to
try
to
open up her own appeal against
the
original care order. Initially she prepared a form of
Respondents
Notice
relating
back
to
matters in 2012 and 2013; however
that
Notice was never formally issued. More
recently
she issued her own free-standing application for permission
to
appeal against
the
original 2013 care order [B4/
2017/2524]
which I
refused,
after consideration on
the
papers, on 23rd October
2017
on
the
basis
that
the
application was '
totally
without merit'.
- Neither
the
mother nor Mr JM attended
the
hearing of
the
appeal before
this
court on 7 November
2017.
- On 6 November
the
mother contacted
the
Court of Appeal office and applied for an adjournment firstly so
that
she could arrange paperwork
that
she intended
to
submit
to
support her challenge against
the
original care orders and, secondly, because she claimed
to
be incapacitated as a
result
of experiencing back pain over
the
course of
the
previous
two
weeks.
That
application was made by e-mail, without any supporting documents. It was
refused,
but
the
court indicated
that
any further application for adjournment would be
reconsidered
if supported by
relevant
medical evidence.
- At 10.15am on
the
7 November (
the
appeal hearing day)
the
mother submitted an e-mail containing attendance
records
indicating
that
she had sought attention at a local hospital Accident and Emergency department on 3 November for right hip pain and
that,
on
the
same day, she was given a prescription for painkillers. E-mail correspondence with a local chiropractic clinic indicated
that
she had
received
some
treatment
in
the
period prior
to
6 November. Finally, she submitted a computer
record
of her
request
for her GP
to
provide a
report
giving an account of an x-ray
that
she had had at
the
local hospital which would indicate a fracture
to
the
L5
region
of her back
together
with
the
existence of age degenerative dislocated discs.
The
covering e-mail from
the
mother
to
which
these
various documents were attached stated
that
she could also provide a statement from a police officer who "witnessed
the
fall on
the
11 October
2017"
and
that
she was awaiting a further medical
report
"from
the
23 October
2017,
when I
received
treatment
at
the
spinal clinic."
The
judgement of HHJ Furness includes a
recital
of a number of attempts by
the
mother
to
obtain adjournments at
the
various hearings in or around March
2017
for various stated
reasons
none of which, it is plain, were entertained as valid by
the
judge.
- Having considered
the
material submitted by
the
mother, we
refused
her application for an adjournment. We did so for
two
reasons
that
can be shortly stated. Firstly, none of
the
material
that
she has submitted indicates
that
she would be physically unable
to
attend court.
The
various attendances
referred
to
at a spinal unit,
the
chiropractic clinic and
the
hospital A&E department have been achieved by
the
mother in
the
past
two
weeks. Her attendance at hospital only
three
days before
the
hearing is
recorded
as being "by private
transport".
Secondly,
the
point at issue on
this
appeal is, at bottom, a point of law. Neither
the
mother nor Mr JM has submitted any document whatsoever in
response
to
the
appeal.
There
is no basis for believing
that,
if she did attend, she would have any positive case
to
put in
response
to
the
local authority's legal submissions
regarding
the
court's jurisdiction
to
grant a non-molestation order.
- Mr JM is, we were
told,
currently serving a sentence of imprisonment. He has been served with
the
appeal proceedings and has not
taken
any step
to
engage with
the
process.
- We
therefore
proceeded
to
hear and determine
the
local authority's appeal.
Discussion
- Having
taken
some
time
to
set out
the
background, it is possible
to
express my conclusion on
the
central issues in
this
appeal in short
terms.
(i) Jurisdiction
- Firstly,
there
is no room for doubt
that
the
court had jurisdiction
to
consider granting a non-molestation order for
the
protection of
the
child
in
this
case under FLA 1996, s.42(2)(b).
The
court was seized of validly constituted 'family proceedings' (s.63(1)), namely
the
local authority application under
the
inherent jurisdiction. I do not share
the
judge's sense of
reticence
in
relying
upon
the
existence of
those
proceedings as a jurisdictional platform for considering granting a non-molestation order under s.42(2)(b).
The
application under
the
inherent jurisdiction had been properly made in order
to
achieve substantive
relief
in
the
form of an injunction
to
protect
the
child,
the
foster carers and
their
immediate environment. Permission
to
bring
that
application had been granted by HHJ Parry under CA 1989, s.100 and both
that
judge and HHJ Furness had granted wide-ranging injunctions under
the
inherent jurisdiction.
The
inherent jurisdiction application was not some empty procedural
tree,
the
fruit of which was
to
be discarded as soon as
the
looked-for non-molestation order had been secured.
The
inherent jurisdiction injunction was fixed by
the
judge
to
run for
the
child's
minority and
there
is no
reason
why it would have been, or should have been, discharged or superseded if a non-molestation order had also been imposed.
- Looked at on a wider basis, it must be
the
case
that,
for s.42(2)(b)
to
operate,
there
will always be some other application in 'family proceedings' before
the
court, on
the
back of which
the
court will have jurisdiction
to
consider making a non-molestation order for
the
benefit of a
child
even if
there
has been no formal application made for one under FLA 1996.
The
provision in s.42(2)(b) is
there
to
supplement
the
jurisdiction of
the
court in other family proceedings (for example under
the
Matrimonial Causes Act 1973 or
the
Adoption and
Children
Act 2002) where, because
the
non-molestation jurisdiction is confined
to
the
1996 Act,
there
is no other power
to
make a non-molestation order backed up with
the
criminal sanction now contained in s.42A(1). In contrast
to
the
approach of
the
judge,
therefore,
I do not
regard
this
as a rather strange
result;
on
the
contrary,
this
would appear
to
be
the
result
to
which s. 42(2)(b) is
targeted
so
that,
as here, where a non-molestation order may be justified,
the
court has jurisdiction
to
grant it for
the
protection of a '
relevant
child'.
The
importance of s.42(2)(b) within
the
structure of FLA 1996 is not
to
be understated.
There
are
two
separate jurisdictional avenues by which
the
court may make a non-molestation order. Firstly, under s.42(2)(a) which is limited
to
cases where an application for a non-molestation order has been made by 'a person who is associated with
the
respondent';
this
provision is
therefore
very largely limited
to
adult
relationships
and it is not expressly focussed upon
the
protection of any
relevant
child.
Secondly, and separately,
there
is
the
wider jurisdiction
to
protect 'any other party
to
the
proceedings or any
relevant
child'
under s.42(2)(b).
The
purpose of s.42(2)(b) would seem
to
be clear; it is
the
means by which
the
court may make orders for
the
protection of
children
whose circumstances have come
to
the
notice of
the
court in other family proceedings.
- In
the
present case,
the
local authority's aim was
to
achieve
the
protection of
the
child
and her carers from
the
worrying and
troublesome
actions of
the
mother and Mr JM. Once it was accepted
that
any order under
the
inherent jurisdiction could not be supported by a power of arrest, it was a perfectly legitimate step for
the
local authority
to
ask
the
court
to
consider granting a non-molestation order under
the
1996 Act by utilising
the
jurisdiction provided by s.42(2)(b) which is designed precisely for
the
purpose of supplementing
the
court's jurisdiction in other 'family proceedings' in
this
way.
(ii) Non-molestation
- When determining whether or not particular conduct is sufficient
to
justify granting a non-molestation order,
the
primary focus, as established in
the
consistent approach of earlier authority, is upon
the
'harassment' or 'alarm and distress' caused
to
those
on
the
receiving
end. It must be conduct of 'such a degree of harassment as
to
call for
the
intervention of
the
court' (Horner v Horner and C v B). Although in C v C
the
phrase 'was calculated
to
cause alarm and distress' was used, none of
the
authorities
require
that
a positive intent
to
molest must be established.
- Prior
to
the
introduction of
the
Family Procedure Rules 2010,
the
template
order applicable
to
non-molestation orders (Form FL404), which was given statutory effect by
the
Family Proceedings (Amendment) Rules 2007, in addition
to
a clause
relating
to
'violence' included a provision
requiring
a
respondent
not
to
'intimidate, harass or pester'
the
applicant or a
relevant
child.
Although Form FL404 is no longer a named as a statutory form under
the
FPR 2010,
the
phrase 'intimidate, harass or pester'
remains
in
the
form of 'non-molestation omnibus order' which is currently
the
subject of consultation.
The
jurisdiction under FLA 1996, Part 4 aims
to
protect a victim from molestation, rather
than,
as would be
the
case under
the
criminal law,
to
convict and punish a perpetrator.
The
statutory
requirement
in s.42(5), which does not make any
reference
to
the
intention of
the
respondent,
is for
the
court
to
have
regard
to
all
the
circumstances 'including
the
need
to
secure
the
health, safety and well-being' of
the
applicant or a
relevant
child.
- In
the
present case, on
the
judge's findings,
the
mother and Mr JM had been involved in a concerted course of conduct in which
they
had
traced
the
child's
foster home some
three
years earlier and identified her school.
The
mother
told
the
judge
that
she had been
to
the
area of
the
foster home, which is a significant distance from her own home,
to
observe
the
child
on more
than
30 occasions over
the
previous
three
years. In 2015 she had left a card one night next
to
the
foster carer's car;
the
card said 'you only have one Mammy, I will have you back, and it won'
t
be long now'. More
recently,
in February
2017,
the
mother accepted
that
she had asked
two
boys at
the
child's
school
to
pass a note
to
the
child
which
read:
'Mammy loves you and is coming
to
take
you home soon. Do not show anyone. Put in bin after
reading.
Show no one.'
The
boys very sensibly immediately passed
the
note
to
the
headteacher.
The
judge held
that
this
was a genuine expression of
the
mother's intention
to
abduct
the
child.
The
judge accepted
that
the
passing of
the
more
recent
note, although it had not been seen by
the
child,
had immediate consequences for
the
foster carers and
the
child.
He accepted
the
validity of
the
foster carer's account
to
which I have already made
reference.
Two
weeks later, on
the
1st and 2nd March
2017,
the
mother was observed on a number of occasions in
the
area of
the
foster home.
The
judge made a number of findings which included:
i)
The
mother is a desperate woman who feels
that
the
court orders preventing her having contact with
the
child
are unfair;
ii) Her desperation has increased in
the
months prior
to
the
hearing, coinciding with a period
that
Mr JM was at liberty;
iii) She was considering an attempt
to
remove
the
child
(from school or
the
foster carers);
iv) She knows significant details of
the
child's
daily life;
v) She was in
the
area on 2nd March
to
try
and abduct
the
child;
vi)
The
mother and Mr JM
together
and individually 'pose a genuine
threat
to
the
placement of [
the
child]
by way of abduction';
vii) Even if wrong about
the
threat
of abduction,
the
mother's behaviour has
the
inevitable effect of destabilising
the
placement.
The
judge concluded his findings in
these
terms:
'62. I am satisfied
that
the
mother's current behaviour, supported by JM who has
travelled
up
to
[
the
area] on 2-3 occasions he
told
me,
threatens
her placement again. It is wholly unjustified and leads
to
a clear detriment for [
the
child]
– everyone must be on
their
guard, safeguarding measures are in place,
there
is police involvement,
the
school have been warned and
the
foster parents are constantly on
their
guard. It is extremely unsettling for
the
foster parents of [
the
child],
and in my judgment is positively harmful
to
[
the
child]
and, if it [is] allowed
to
continue, is likely
to
lead
to
the
termination
of
the
placement and significant harm
to
[
the
child].
63. I am absolutely satisfied
that
[
the
child]
needs
the
protection of
the
Court
to
be able
to
live her life, safely, freely and happily. If she is not afforded such protection she is likely
to
suffer disruption and significant emotional harm. Her welfare demands
that
I protect her from
the
mother and from Mr JM'.
- At paragraph 80
the
judge, rightly, considered
the
statutory
test
under FLA 1996, s.42(5):
'For
the
reasons
which I have already outlined any consideration of
the
circumstances of
the
case including
the
need
to
secure
the
health, safety and well-being of
the
applicant or any
relevant
child
would clearly indicate
the
necessity for an order.'
- Despite making a clear finding
that
the
child
was likely
to
suffer significant emotional harm if
the
mother and Mr JM's conduct continued, and despite holding
that,
by applying
the
relevant
statutory criteria, an order was clearly necessary,
the
judge nevertheless declined
to
make a non-molestation order for
the
reasons
given at paragraphs 81
to
83 (set out at paragraph 14 above).
The
judge's conclusion,
that,
because
the
actions complained of had not actually been seen by
the
child,
this
did not constitute molestation sufficient
to
justify an order under
the
1996 Act seems
to
have been based upon
the
absence of any direct, one-
to-one,
harassment of
the
child
by
the
mother or Mr JM.
- Although
the
judge is a most experienced family lawyer and judge, I am clear
that
his conclusion was made in error.
There
is no
requirement
in either
the
1996 Act or
the
case law for
there
to
be some direct interaction between
the
respondent
and
the
applicant or
child
in order
to
establish
the
basis for granting a non-molestation order.
The
judge's finding
that
the
mother and Mr JM's conduct was 'positively harmful'
to
the
child
and, if continued, would be likely
to
cause significant harm, was more
than
sufficient
to
justify exercising
the
powers under s. 42.
The
impact on
the
child's
life of
the
mother and Mr JM's conduct, as described by
the
foster carers and as found by
the
judge, plainly amounts
to
harassment and, as
the
judge held, applying
the
s. 42(5) criteria, makes
the
granting of an order clearly necessary. Where, as here, a judge has held
that
the
child's
very placement with
the
foster carers was
threatened
by
the
actions of
this
'desperate' mother, it was in my view, erroneous
to
hold
that
the
court lacked jurisdiction
to
make a non-molestation injunction.
- It follows
that,
if My Lords agree,
the
appeal must be allowed.
- On
the
basis of
the
very clear findings made by
the
judge, and on
the
basis
that
it is plain
that
he considered
the
granting of an injunction as being a 'necessity' as against
the
s. 42(5), only holding back from doing so because of an erroneous (as I have held) view of
the
law,
there
would seem
to
be no merit in
this
court now
referring
the
case back
to
the
High Court for a
re-hearing.
We are in as good a position as
the
judge
to
re-determine
the
issue and, as only one outcome is justified on
the
facts as found, I would grant a non-molestation order against
the
mother and Mr JM.
- Mr Boothroyd has submitted a draft order which, subject
to
amendments, I would approve.
The
respondents
have not yet seen
the
terms
of
this
order and, if
they
wish
to
apply
to
vary its
terms
or for its discharge,
they
are at liberty
to
apply back
to
the
High Court for
that
purpose.
Lord Justice Davis:
- I agree with
the judgment of Lord Justice McFarlane
Lord Justice Hickinbottom:
- I agree
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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1889.html