(Family Division, Hayden J, 21 July 2015)
[The judicially approved judgment and accompanying headnote has now been published in Family Law Reports  1 FLR 994
Public law Children – Inherent jurisdiction – Risk of sexual abuse – Local authority sought to protect young people in its area at risk from a man who had been found to sexually abuse his step-daughterThe local authority application to invoke the inherent jurisdiction of the High Court to protect young people in its area from a man who was perceived to present a sexual risk was refused.
Following care proceedings in which it was found that the man had systematically groomed and repeatedly raped his step daughter the local authority sought to invoke the inherent jurisdiction of the High Court to protect young people in their area from him.
The man had refused to accept the findings against him and a consultant forensic psychologist concluded that there was evidence of a deviant sexual interest and towards sexual assault against pubescent and older pre-pubescent and adult females. No therapy could be identified that would reduce the risk.
Hayden J set out the limits of the jurisdiction and found that it could not not regarded as a lawless void permitting judges to do whatever was considered right for children or the vulnerable either in a particular case or as here more generally towards unspecified categories of children or vulnerable adults.
Hayden J recognised that this decision was at odds with that in Birmingham City Council v Sarfraz Riaz and Others
 EWHC 4247 (Fam),  FLR forthcoming, but noted that the Sexual Offences Act 2003 now permitted criminal courts to make sexual risk orders which offered the protection sought in this case which was not available at the time the Birmingham
case was decided.
The local authority was in the process of seeking sexual risk orders but sought orders under the inherent jurisdiction as an interim measure. The undertakings the man had previously been invited to give did not fall within the legislative framework or the parameters of the inherent jurisdiction and were, therefore, discharged.
Neutral Citation Number:  EWHC 2140 (Fam)
Case No: FD15P00058
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
MR JUSTICE HAYDEN
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London Borough of Redbridge
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Mr. Kyri Lefteri for the Local Authority
Ms. Melanie Johnson (instructed by Harris Waters Solicitors) for the Respondent
Hearing dates: 2nd July 2015
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Mr Justice Hayden
This is an application made on behalf of the London Borough of Redbridge to invoke the inherent jurisdiction of the High Court in order to protect vulnerable youngsters from a male (SNA) in their borough who they perceive to present a sexual risk.
The orders sought are drafted widely, focused on ‘any female under 18 years of age’. They require to be set out:
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.
Mr Kyri Lefteri, who appears on behalf of the Local Authority sought to rely on the judgment of Keehan J in Birmingham City Council v Sarfraz Riaz and Others
 EWHC 4247. There the Judge, at paragraph 9 of his judgment made orders to the following effect;
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.
Keehan J was clearly conscious that he was being asked to push the parameters of the High Court’s inherent jurisdictional power to protect vulnerable children. In his detailed exegesis of the law he began with this arresting quotation:
“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.”
Recognising that the use of the inherent jurisdiction has been very significantly curtailed by s100 Children Act 1989 and that a Local Authority may not apply for any order under it without first applying for the leave of the court, Keehan J 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)
"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".
Keehan J also looked at the facilitative provisions of the Family Procedure Rules which emphasise the inherent jurisdictional powers as imposing a ‘duty’ on the court to protect children who are subject to proceedings. The relevant paragraphs are:
“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”
Having reviewed the jurisdiction in this way Keehan J came to the following conclusion in relation to the injunctive orders he was being asked to make:
“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.”
The Birmingham case concerned a teenager who had repeatedly placed herself in situations of grave risk. Police intelligence before the court reported that she was performing sexual acts in exchange for cigarettes and cannabis and had been seen on videos using cocaine and performing sexual acts on Asian males. This is but the barest outline of the welfare concerns in that case but it suffices to illustrate why Keehan J was so highly motivated to use all the weapons in the court’s armoury to protect the child and to restrict the behaviour of those who were so cynically abusing her.
In his concluding paragraphs Keehan J observed:
“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.”
I could not agree more forcefully with the sentiments expressed there. Indeed in London Borough of Barking & Dagenham v SS
 EWHC 4436 (Fam) I found myself hearing one of those ‘more extreme cases’ where a young girl had been placed in secure accommodation in an attempt to sever the link she had forged with a group of exploitative males. The order (which I ultimately declined to renew) was predicated on the identified need that she be protected, in effect, from herself. I made the following observations:
“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.”
Later in the judgment I encouraged the Local Authority to pursue injuctive relief against a particular male obliging him to notify the police or Social Services if he were contacted by the child (SS):
“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.”
In the event, the male could not be contacted and there were no further proceedings. However, it is important to note that the reach of that contemplated injunctive relief was limited to a particular adult and a particular child. In this respect therefore I did not go as far as Keehan J had done.
The Local Authority, by their advocate Mr Lefteri, base their application entirely on the precedent of Keehan J’s order at 1(e) and (i):Not to:
“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.”
They develop their argument in these terms:“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.”
Mr Lefteri recognises that the child in these proceedings has been fully protected by the granting of injunctive orders pursuant to the Family Law Act 1996 but he notes that in the Birmingham case the court was ‘not deterred from extending orders to protect other children in society’. He refers me to Keehan J’s reasoning
“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.”
Ms. Melanie Johnson on behalf of SNA strongly resists the argument that the reach of the inherent jurisdiction goes as far as Keehan J concluded it did. She accepts that if the analysis in Keehan J’s judgment is correct the Local Authority is able to rely on it and she (if I did not find for her on any of her other arguments) would have to submit to it. The flaw in para’s (e) and (i), says Ms. Johnson is that it contemplates the inherent jurisdiction extending to classes of unnamed and unidentifiable individuals. In her written closing submissions she states:
“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.”
This, Ms. Johnson submits, runs contrary to the underpinning philosophy of the jurisdiction. She draws my attention back to the practice directions which she contends casts light on the nature of the relief available:
“Practice Direction 12D Inherent Jurisdiction (Including Wardship) Proceedings sets out”“The nature of inherent jurisdiction proceedingsIt 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.”
This emphasises, it is contended, that the obligation is to an individual child, which only arises in circumstances where the issues concerning the child cannot be resolved under the Children Act 1989. In her supplemental submission Ms. Johnson states as follows:
“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.”
The statutory restrictions on the use of the inherent jurisdiction are found in s100 of the Children Act 1989:
“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).”
S100 (4) (b) focuses on ‘the child’ in circumstances where ‘he is likely to suffer significant harm’. These provisions are of course set within the framework of an Act in which the welfare of the individual child is paramount. All this, says Ms. Johnson, establishes no foundation at all for the protection of vulnerable children generally. That, she says, is to trespass into the role of Parliament, policing and social policy which she respectfully submits is not the function of the High Court.
It is important to set these arguments in the facts of this particular case. In December 2014 HHJ Sapnara heard a fact finding hearing within care proceedings brought by this Local Authority. Proceedings had been instituted in August 2014. The subject children were SA, a girl age 17; AA a girl of 14; AN a boy aged 10 and ZA a boy aged 6. SNA, the respondent in this application is the father of the two boys and the stepfather of the two girls. At the conclusion of that hearing Judge Sapnara made extensive findings against SNA amounting to systematic grooming of SA over a number of years form a very young age. It also involved the use of violence and eventually rape per vagina and anus. The Judge describe SNA in these terms, in her judgment dated 10th December 2014:
“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.”
The Judge also noted:
“‘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”.
Following these findings, SNA was referred to a Consultant Forensic Psychologist, Dr. Shaun Parsons. In the course of the assessment SNA denied the findings against him. Dr. Parsons observed:“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.”
He went on to conclude:
“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.”
Having been asked to comment on any potential therapeutic treatment Dr. Parsons observed:
“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”
SNA has been present during the course of this application. I asked Ms. Johnson whether her client’s attitude to the findings had changed. She confirmed that they had not. There is nothing to suggest that the risk identified by Dr. Parsons has ameliorated at all.
What particularly concerned the Local Authority however, was an exchange between SNA and Dr. Parsons addressing this question of future risk:
“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” ”.
The emphasis in bold was Dr. Parsons’ own in his report. That alarm was sounded again in the concluding paragraphs to his report:
“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.”
Again the above emphasis is that contained in Dr. Parsons’ report.
It is not necessary for me to evaluate Dr. Parsons’ analysis. Ultimately however, assessment of risk is a task for the court. The Judge will usually be assisted by expert evidence but it is the judge who has the ultimate responsibility not the expert. The judge HHJ Sapnara found SNA to have perpetrated severe sexual assaults on a child. To my mind, in the face of his continuing denial, the risk of reoffending remains unquantifiable and therefore must be regarded as high. 
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
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.”
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.
Ms. Johnson directed my attention to the Practice Direction at para 1.1. The subsequent provisions also, it seems to me, reinforce her point, concentrating as they do again on the subject child.
“1.2The 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.
1.3The 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.”
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.
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.
Having indicated that I would reserve judgment I invited Ms. Johnson to canvass with her client whether he was prepared, without any admission to the facts found by HHJ Sapnara, to give undertakings to this Court designed to afford the protection sought by the Local Authority until such time as the Magistrate’s Court considered the SRO application. Undertakings were given in these terms:
“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 thanSuch as inadvertent and not reasonably avoidable in the course of lawful daily life orWith 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.”
In the light of everything I have set out above it is plain that I have accepted undertakings which, if they had been declined, I would have had no jurisdictional basis upon which to make similar orders. Judges frequently accept undertakings which are beyond the scope of their specific statutory powers. This occurs regularly in child abduction cases and in cases involving the Hague Convention. In the field of matrimonial finance judges will accept and encourage undertakings for example, in respect of the reallocation of stocks and shares or the restructuring of partnership assets which they would be unable to order. In both these examples however, undertakings are accepted because they further the central objectives of the relevant litigation. Thus in Hague Convention / abduction cases, undertakings will be given which promote the objective of international comity which is central to the philosophy of the relevant law and Conventions. In matrimonial finance, undertakings will be accepted which give effect to the very broad criteria in s25 of the Matrimonial Causes Act 1973 and to the prevailing philosophy which encourages resolution of disputes by the parties themselves wherever possible and the promotion of the principle of ‘the clean break’.
These are very different circumstances to those which obtain here. These undertakings, in my judgement, do not fall either within the objectives of the applicable legislative framework or within the parameters of the powers of the inherent jurisdiction. They are entirely extraneous to both. Having reflected therefore, I do not consider it to have been appropriate in the circumstances to have invited such undertakings from the Respondent. I propose to discharge them.