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.

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#CHILD SEX ABUSE – LIFETIME REPORTING RESTRICTION FOR SURVIVOR

Life-time reporting restrictions orders

Is the court entitled in exceptional circumstances to make a life-time reporting restrictions order (‘RRO’) to restrict publicity for the lifetime of a child, say a survivor of child sexual abuse? It so what types of facts might justify such an order?

In December 2014 in Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) Keehan J made an order against 10 men to prevent their sexual involvement with a seventeen year old girl (‘AB’). 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. His order included a RRO for AB to last till she was 18 years old, in August 2015. No RRO was made in respect of her assailants though whether such an order could, or should be made, was part of the court’s consideration in the December case.

In Birmingham City Council v Riaz, AB & Ors [2015] EWHC 1857 (Fam) (Riaz, AB), (24 June 2015) Keehan J considered an application, by the City Council with support from AB, that the reporting restrictions order should last for AB’s lifetime. The newspapers represented before Keehan J said they had no intention of reporting on AB nor intruding on her privacy; but they were concerned, as their advocate explained (quoted by Keehan J at [35]), at the exceptional nature of the RRO which the court was being asked to make:

… the concern is that for the court to make an order such as that requested would be an extraordinary, exceptional, and, we submit, unjustified extension of the court’s use of its jurisdiction, and an unwarranted and unjustifiable intrusion on and limitation of the public and the media’s rights to freedom of expression under Article 10. The concern of the PA and TNL is that if the court makes an order in a case such as this, it will extend the range of injunctions available to local authorities far beyond anything considered in [earlier cases]. An injunction would leave the press bound for the rest of AB’s life.

Jurisdiction

In Riaz, AB the first question for the court was, given the approach of AB’s 18th birthday, had the court any jurisdiction to continue the RRO? This resolved itself into whether the court had jurisdiction to make an order at all; and if so whether it should be operated in respect of AB.

In Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 Lord Steyn stressed the extent of existing statutory provision (cited by Keehan J at §[26]):

[20] There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.

Early on in his judgement Keehan J had referred to JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 in which, it might be said, the Court of Appeal had recently explained how, at common law, the open justice principle can be overridden (and see https://dbfamilylaw.wordpress.com/2015/02/19/a-simple-law-for-privacy-in-children-cases/). A mother was concerned at her and her daughter’s loss of privacy following court approval of her substantial damages settlement. The Court of Appeal set out clear statements of principle in favour of open justice from cases such as Scott v Scott [1913] AC 417, and A v British Broadcasting Corporation [2014] UKSC 25. The court concluded that the criterion for decision as to whether a RRO should be made was whether it was ‘necessary’ to derogate from the principle of open justice (§§[33] and [34]); and that in this type of case – ‘dealing with… essentially private business’ the claimant was entitled to a RRO. Generally such orders should be made for a protected party in a case such as that of JXMX, subject to the press having a chance to object in an individual case.

Keehan J sets out his view of the JXMX decision as follows:

[13] … the decision reflects the emphasis the courts now place on the need to accord due respect to the Article 8 rights of litigants, especially of children, young people and protected parties balanced against the Article 10 rights of the press and broadcast media. The position is encapsulated in the observation of Moore-Bick LJ when he said:

The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant’s identity.

I respectfully agree.

He considered the cases where RROs had been made to protect a new identity (Thompson and Venables, Mary Bell and Maxine Carr) (§§[14]-[18]) and to the age limitations – to 18 for any reporting restriction on a child in court proceedings – in Children and Young Person’s Act 1939 s 39 (R (ota JC and RT) v The Central Criminal Court and others [2014] EWCA Civ 1777). He drew attention (§[20]) to the fact the ota JC and RT case had led to a life reporting direction protection being granted for life to under 18 witnesses and victims in criminal proceedings (Youth Justice and Criminal Evidence Act 1999 s 45(2) and (3)).

Conclusion and reporting restrictions order

The passage from Lord Steyn’s opinion in Re S (above) had been cited to the judge by the advocate for the press. In response Keehan J drew attention to Lord Steyn’s concluding exception for ‘the most compelling circumstances’ (§[27]) for his being able to find further exceptions to the open justice principle. He went on:

[28] In my judgment, however, two matters are plain:

  1. a) a high priority is given by Parliament to young victims or witnesses in criminal proceedings and to the victims of sexual offences and of female genital mutilation; and
  2. b) as I repeat, the approach of the courts has advanced over the course of the last decade or so to protect the Convention rights of litigants in civil proceedings as most recently exemplified by the decision of the Court of Appeal in JXMX 

The judge held that he was entitled to make a life-time RRO, even though AB would no longer be a child for most of the period it covered. Should he do so in AB’s case?

In making this decision the judge must balance the private interests of AB against the public interest in freedom of expression. He addressed the public interests – as advocated by the press representative – as against AB’s private interests as follows:

[40] It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.

[41] What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.

[42] AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.

He concluded from this that these private interests of AB overrode any public interest there might be in press publicity:

[46] I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.

Public interest in victims being encouraged to come forward

Finally the judge emphasised the public interest of the importance of victims of CSE coming forward if they might be capable of being guaranteed life-time reporting restrictions (though each case will depend on its individual facts (injunction applications to be ‘determined on their own merits’: italicised passage below).

[47] I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

Each case will depend on its own facts: the public/private balance must be tested in each instance. However, if Keehan J is followed – and he explains why he considers that the common law in 2015 is with him – then children, who may justify continued anonymity (including survivors of child sexual abuse), can seek orders for restrictions of the reporting of their cases beyond childhood.