SEXUAL RISK ORDERS AND THE INHERENT JURISICTION IN CHILDREN PROCEEDINGS

Hayden J: another view on child sex exploitation

London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam), Hayden J (judgment on 21 July 2015) is important for at least three reasons:

  • Hayden J defines the inherent jurisdiction of the High Court when it comes to a judge’s power to restrain alleged sexual abuse by one or more individuals against a child; and in so doing
  • He reviews the role of local authority in obtaining child sexual exploitation orders and the earlier Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014) of Keehan J.
  • The existence and scope of sexual risk orders under Sexual Offences Act 2003 s 122A (in force since the Birmingham case) was confirmed.

In December 2014 in Birmingham CC v Riaz (above) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl. He held that he could make the order in his inherent jurisdiction on an application by AB’s local authority relating to the child sexual exploitation (‘CSE’) inflicted on her. He recognised that the step taken by him was radical. His order is set out in full in Redbridge v SNA (at §[3]) and formed the basis of the Borough’s application to Hayden J.

Keehan J’s order had included the following: that the male defendants may not:

  1. 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…
  2. 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.

SNA’s advocate criticised this formulation (§§[16]-[18]): the orders are not related to the child the subject of the application and are contrary to the philosophy of the children jurisdiction, she said. This jurisdiction relates to a particular child and, in the case of wardship, where the child issues cannot be resolved under Children Act 1989.

Background facts

The background facts were that care proceedings had been started by Redbridge in August 2014 in respect of SA, a girl aged 17, AA a girl of 14, AN and ZA (boys aged 10 and 6). SNA is the father of the boys and stepfather of the girls. In December 2014 HHJ Sapnara concluded a fact finding hearing and made findings against SNA: of systematic grooming of SA over a number of years from a very young age; use of violence and eventually rape per vagina and anus. He judgment included the following: ‘SNA is a highly manipulative abuser of a child’ (§§[21]-[22]).

SNA was referred to Dr Shaun Parsons (a consultant forensic psychologist) who concluded that SNA’s behaviour ‘is evidence of a deviant sexual interest and towards a sexual assault against pubescent and older pre-pubescent and adult females’ (§[23]).

Inherent jurisdiction of the High Court

The judge took time to reflect; and in particular to explain his own view of the High Court’s inherent jurisdiction. Earlier he had summarised Keehan J’s views on the jurisdiction, especially:

[5] [Keehan J] recognised that the use of the inherent jurisdiction has been very significantly curtailed by Children Act 1989 s 100 and that a local authority may not apply for any order under it without [leave. He] went on to consider what the modern scope and ambit of the inherent jurisdiction might extend to. He noted the observations of Waite LJ in Re M and N (Minors) [1990]:

‘… 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.’

Hayden J’s survey of the operation of the inherent jurisdiction in relation to children sees him balance its use in the Family Division in children proceedings against its use in judicial review. He starts:

[33] … The concept of the ‘inherent jurisdiction’ is by its nature elusive of 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 its reach is all- pervasive or unlimited.

But he then explains the need for the courts to exercise the jurisdiction ‘sparingly’ (which recalls another judgment of Waite LJ in Thomas v Thomas [1995] 2 FLR 668, CA: the discretion of a court in financial relief cases is in theory almost limitless, says Waite LJ; but (at 670): ‘For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that “it is excellent to have a giant’s strength but tyrannous to use it like a giant.”’) Hayden J says:

[33] … Precisely because its 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.

He then looks at a little of the jurisprudence of the Administrative Court in children matters, and in particular looks at its ‘interface’ with the family courts and Court of Protection:

[35] 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 [Court of Appeal: Staughton and Hoffmann LJJ and Sir Roger Parker].

[36] 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.

He concludes, of the inherent jurisdiction in children proceedings, as follows. Firstly:

[36] … 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.

Secondly, he held:

[37] … 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 its 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.

And finally, he says,

[45] 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 [Redbridge is outside] 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.

Sexual risk orders

All was not lost. Sexual risk orders under Sexual Offences Act 2003 s 122A are now available since the Birmingham case (as explained by Hayden J at §[46]); and this enables the police to take proceedings for an order, namely where:

(2) … 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.

Proceedings were under way in the magistrates’ court against SNA. The Redbridge application was therefore dismissed, and in the end the judge decided he could not accept an undertaking from SNA pending the outcome of the s 122A application.

We now have two judicial views on the inherent jurisdiction. Both are from cerebral judges, who both deserve genuine respect. Applications for sexual risk orders may make render largely redundant a definition of the inherent jurisdiction in this children context. It remains a live subject. The views of these two judges in the inevitable further debate will be loud in any discussion.