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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough of Redbridge v SNA  EWHC 2140 (Fam) (21 July 2015)
Cite as:  Fam Law 1187,  1 FAM 335,  3 WLR 1617,  FAM 335,  EWHC 2140 (Fam),  1 Fam 335
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Strand, London, WC2A 2LL
B e f o r e :
| London Borough of Redbridge
|- and -
Ms. Melanie Johnson (instructed by Harris Waters Solicitors) for the Respondent
Hearing dates: 2nd July 2015
Crown Copyright ©
Mr Justice Hayden :
a. contact any female under 18 years of age 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 the child;
b. seek the company or be in the company of any female under 18 years of age whether or not invited to do so in the first instance by the child;
c. approach any female under 18 years of age 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 the child;
d. Reside in the same home as a female child under the age of 18 years of age.
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 member 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 seeks 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.
"42. The inherent jurisdiction of the High Court "may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits" Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23."
"the 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".
"The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2:
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"
"46. 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."
"All too often in such cases the only action taken by the authorities, where there is insufficient evidence to mount a prosecution, is in respect of the victim. They are invariably taken into care or, in more extreme cases, they are placed in secure accommodation as was the case with AB. Whilst that action is taken in the best interests and to protect the young victim, it strikes me as wrong and unfair that no action is taken against the perpetrators of child sexual exploitation. "
"16. The courts have seen a number of cases in recent years where vulnerable young girls have been exploited in a variety of ways by groups of predatory men. That so many of these men escape prosecution and continue to enjoy their liberty whilst the young girls they exploit are locked up (for their own protection) sends very confusing messages to the girls themselves, to the distorted minds of the men who prey on them and to society more generally."
"I have also indicated that the Local Authority should employ strenuous efforts to serve the individual male I have referred to in this judgment with a notice of an application for an injunction. I have indicated that I intend to craft an injunction which imposes upon him a positive duty to inform the police or Social Services if SS were to contact him in any way at all. I believe, subject to submissions, which I will hear in due course, that such an injunction can be formulated in a way which is properly compliant with competing Convention Rights. I have impressed upon the local authority their obligation to attend to this as a priority, reserving any application to myself."
"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."
"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."
"In making its application, the Local Authority relies on the decision of Keehan J in Birmingham City Council v Sarfraz Riaz and others  EWHC 4247 (Fam), where the Learned Judge made orders under the inherent jurisdiction that were designed to prevent predatory males from grooming or otherwise committing sexual offences in relation, not only to the subject child but also crucially, to prevent them from approaching and grooming any other female child."
"Keehan J refers to the applications brought by Birmingham City Council as being a "bold and innovative approach"…."
"In making its application, the London Borough of Redbridge adopted the "bold and innovative" position taken by Birmingham City Council and was guided fully by the decision of Keehan J."
"121. In all of those circumstances I am satisfied, that unless prohibited from doing so, there is a real risk that each of them would seek to sexually exploit other vulnerable young females under the age of 18. Accordingly I am satisfied that the terms of the proposed order at paragraphs 1 (e) and (i) are fair, necessary, and proportionate to the risk I have identified and are clear."
"The orders sought by the Local Authority are not related to the children subject of the application they are injunctive orders for all children and young persons under the age of 18 years."
"Practice Direction 12D Inherent Jurisdiction (Including Wardship) Proceedings sets out"
"The nature of inherent jurisdiction proceedings
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."
"It is submitted on behalf of the Respondent that the court's duty is in respect of 'a child who is the subject of proceedings'. The Local Authority do not wish to obtain injunctive orders in respect of any of the children who are the subject of proceedings but children and young persons in general. Therefore the court is not in a position to grant leave to the Local Authority to apply for the exercise of the court's inherent jurisdiction."
"S.100 (4) Children Act 1989 provides:
(4) The court may only grant leave if it is satisfied that-
(a) the result of 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 a reasonable cause to believe that if the court's inherent jurisdiction in 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)."
"In my judgment, SNA is a highly manipulative abuser of a child. His conduct betrays a significant amount of planning and preparation and grooming involved in the abuse of SA over a number of years from a very young age. This constitutes a sustained course of abuse. The escalating nature of the types of abuse that SA has outlined has the ring of truth about it, starting with touching and ending up in full sexual intercourse and discharge of semen. That progression of abuse is entirely consistent with her developmental progress."
"'He was very careful to socially isolate the children and allow very limited social interaction with their peers. He impressed upon the mother and the girls that he was there to protect them from abusers, just like himself in fact. All of that constitutes manipulative grooming behaviour"
"In my opinion, based upon these findings, this is evidence of a deviant sexual interest and towards a sexual assault against pubescent and older pre-pubescent and adult females."
"In my opinion, considering the dynamic factors outlined in my risk assessment above,…in my clinical judgement [SNA] is at a medium level of risk of engaging in a further sexual assault. Bearing in mind that findings of the court, this risk is directed at adult females, adolescence females and older pre-pubescent females. There is no indication that [SNA] poses a sexual risk to males of any age."
"As [SNA] completely denies the findings of the court, in my view, it would not be possible to work with him in any way to reduce the risk of further sexual assault. Therefore I would not recommend any form of treatment…. at this time. Should [SNA's] attitude towards the findings of the court change in the future and he accepts that he has engaged in the behaviours that the court has found he has, then in my opinion his suitability for a treatment programme would need to be reviewed at that time"
"I asked [SNA] if he considers himself to be a risk to other children, in response to which he said "you can have checks about my character from the school or anyone living around me. At my office, people visit sometimes with their children and leave them with me". I asked [SNA] to clarify his statement that members of his staff leave their children with him, in response to which he said "yes, of course, and there are CCTV's in my office; there are 16 around my work place" ".
"I would also wish to highlight further child protection concerns. During this, my most recent interview with [SNA], he disclosed that colleagues at his workplace would leave children in his care. In my view this poses a direct child protection concern and should any of these children be females, in my opinion [SNA] would pose a direct sexual risk to these females. In my view, it is essential that [SNA] is prevented from having any form of unsupervised access to female adolescence or old pubescent, including in his workplace."
"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."
"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?"
"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."
"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."
"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."
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.
The court's wardship jurisdiction is part of and not separate from the court's inherent jurisdiction. The distinguishing characteristics of wardship are that –
(a) custody of a child who is a ward is vested in the court; and
(b) although day to day care and control of the ward is given to an individual or to a local authority, no important step can be taken in the child's life without the court's consent."
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.
"AND UPON the Respondent giving Court Undertakings in the following terms:"
Not to live in the same household as any female under the age of 18 years unless with the express approval of Social Services for the area.
Not to have unsupervised contact or communication of any kind with any female under the age of 18 years, other than
Such as inadvertent and not reasonably avoidable in the course of lawful daily life or
With the consent of the child's parent or guardian (who has knowledge of the findings) AND with the express approval of Social Services for the area.
The Respondent is bound by the promises until 1st October 2015."