C v K (Ouster Order: Non-Parent)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Family Division |
WALL, J
Jurisdiction – ouster order – man and woman joint tenants of a property – both living in the property but not cohabiting – woman assuming care of young grandchild – man objecting and behaving in way which caused upset to child – whether court had jurisdiction to make exclusion order against man – circumstances in which such jurisdiction should be exercised.
The applicant was a single woman aged 55. Her family included an adult daughter and a grandson aged 2½.
At some time between 1984 and 1988 the applicant went to live with the respondent as husband and wife. They lived at his home which was a council property and in 1988 the council granted a new tenancy to the applicant and the respondent jointly.
There were problems in the relationship between the applicant and the respondent. The respondent seriously assaulted the applicant on a number of occasions and in 1991 she obtained an ouster order. Within about a month there was a reconciliation and the applicant and the respondent resumed cohabitation. However, in 1993 the relationship broke down and although the applicant and the respondent both continued to live in the property they occupied separate rooms and lived totally separate lives. The respondent continued to be violent towards the applicant and appeared determined to get her to leave the property.
In August 1995 the applicant's daughter was sentenced to a term of imprisonment of five years. The daughter's son went to live with his grandmother, the applicant. The respondent objected to the child going to live at the property.
After the child went to live at the property the respondent only stayed at the property occasionally and divided his time between the home of a woman who was the mother of his three children and the home of another woman with whom he had a sexual relationship.
The respondent's objection to the child's presence in the property took the form of repeatedly shouting abusively at the applicant in the child's presence that he did not want the child there and, in November 1995, he threw the child's belongings and the bed he had been sleeping in out of the child's room and put a lock on the door. The child was greatly upset by the respondent's actions.
Having been granted leave to apply the applicant sought a residence order. She also applied for injunctive relief against the respondent, such relief to include an ouster order.
The child's mother agreed to a residence order being made in favour of the applicant and such an order was made. It was intended that the child would return to live with his mother when she was released from prison and after an appropriate transitional period.
The Judge then proceeded to deal with the application for an ouster order. This application
raised the issue whether or not the court had jurisdiction to exclude a joint tenant from his property (i) when the order was said to be required to protect a child living in that property from harm or to prevent interference by the joint tenant with the proper exercise of parental responsibility under a residence order in relation to the child by the other joint tenant; and (ii) where the joint tenants were neither spouses or former spouses and were not living together as husband and wife; and (iii) where the person sought to be excluded was not the parent of the child. Further, if there was jurisdiction, the questions arose as to whether it was merely theoretical and not to be exercised in practice; whether, if it could be exercised, a person could be excluded from his property permanently or only for a limited or finite period; and how, if the power existed, it should be exercised on the facts in the present case. Alternatively, if the power to exclude did not exist, whether there was power to regulate the behaviour of the parties to the child.
Held – (1) Where judicial interference with the rights of occupation of property as between spouses, cohabitees, or former spouses was specifically governed by statute, the relevant statutory provisions applied. Leaving on one side the parens patriae jurisdiction of the High Court in wardship, there existed an inherent jurisdiction in the High Court and in county courts to protect children from harm which was exercisable irrespective of the proceedings in which the need to protect the children arose. There was a co-existing jurisdiction given in the High Court by s 37 of the Supreme Court Act 1981 and in county courts by s 38 of the County Courts Act 1984 to grant injunctive relief in support of legal and equitable rights. The powers exercisable under those statutory provisions might be involved in support of the rights and duties conferred on a person by a residence order so that a non-residential parent might be restrained from interfering with the residential parent's exercise of parental responsibility. These powers extended to orders against molestation and ouster injunctions. Further, those powers extended to the grant of injunctions against third parties, so that a person who was not a parent could be restrained from interfering with the exercise of parental responsibility by a person who had a residence order in respect of the child, and the powers included the power to exclude the stranger from property in which he had a beneficial interest. Whilst this latter power might exist under the inherent jurisdiction the better course was to invoke the jurisdiction of s 37 of the 1981 Act and s 38 of the 1984 Act. Further, the powers of the court to exclude a person from property in which he had a proprietary interest should be exercised with extreme caution and only where the court was satisfied that if the jurisdiction was not exercised the child was likely to suffer significant harm; and the court must look to all the circumstances of the case and make finding of fact upon which the assessment of future harm could be made. Although there was jurisdiction to make such an exclusion order without limitation of time, the court could not by those means vary a proprietary interest and must in every case consider whether an indefinite order was required to protect the child from harm and to achieve a result which was just.
(2) In the circumstances of the present case the application for an exclusion order would be adjourned for three months and the respondent would be allowed to return to the property subject to interim injunctive orders. The local authority would be requested to report on the welfare of the child under s 7 of the Children Act 1989.
Statutory provisions referred to:Children Act 1989, ss 1, 7, 8, 34 and 100(4) and (5).
County Courts Act 1984, s 38.
Domestic Violence and Matrimonial Proceedings Act 1976.
Matrimonial Homes Act 1983.
Supreme Court Act 1981, s 37.
Cases referred to in judgment:Ainsbury v Millington [1985] 1 All ER 73.
Gibson v Austin[1993] 1 FCR 638.
Grant v James[1993] 1 FCR 850.
H and Others (Minors) (Prohibited Steps Order), Re[1995] 2 FCR 547; [1995] 1 WLR 667.
Hennie v Hennie[1993] 1 FCR 886.
Lucas v Lucas [1991] FCR 901.
M v M (Residence Order: Ancillary Injunction) [1994] Fam Law 440.
Montgomery v Montgomery [1965] P 46; [1964] 2 WLR 1036; [1964] 2 All ER 22.
Nottinghamshire County Council v P [1994] 1 FCR 547; [1994] Fam 18; [1993] 3 WLR 637; [1993] 3 All ER 815.
O'Malley v O'Malley (1982) 3 FLR 418.
P v P (Ouster) [1993] Fam Law 283.
Pearson v Franklin[1994] 2 FCR 545.
Quinn v Quinn (1983) 4 FLR 394.
Richards v Richards [1984] 1 AC 174; [1983] 3 WLR 173; [1983] 2 All ER 807.
S (Minors) (Inherent Jurisdiction: Ouster), Re[1994] 2 FCR 986.
W (A Minor), Re [1981] 3 All ER 401.
Webb v Webb [1986] 1 FLR 541.
Wilde v Wilde [1988] FCR 551.
Wiseman v Simpson [1988] FCR 242.
Nicholas Stoner for the applicant.
Mary Isles for the respondent.
MR JUSTICE WALL.This is an application by Miss C for orders that Mr K be forbidden, whether by himself or by instructing or encouraging any other person: (1) to use violence against her or threaten, harass or pester her; (2) to threaten, harass or pester her or the child who was born on 7 September 1993; and (3) to enter or attempt to enter a named property ["the property"] or approach within 50 yards thereof.
Miss C is 55 and she is the child's maternal grandmother. On or about 4 August 1995, the child's mother was sentenced to a term of five years' imprisonment for drugs-related offences. She is currently serving that sentence in Holloway Prison. During her incarceration Miss C has agreed to care for the child. That is an arrangement with which the mother is content and which appears to have the approval of the social services department of the local authority, although the evidence about the latter's development in the child's predicament is far from clear.
Miss C told me in evidence that she anticipates the mother will resume the care of the child when she is released from prison, although there may need to be a transitional period during which the mother re-establishes herself and she and the child will readjust to each other. The child's father plays no part either in his life or in the current proceedings.
The child has a half-sister now aged 8. She is cared for by Miss C's other daughter, D. Those arrangements have also been agreed with the mother. D cannot care for both children because she has a 15-year-old severely handicapped child.
Indeed Miss C told me that D only took the girl because Miss C was unable to care for both children herself.
The property is a council house or maisonette owned by the local authority. The tenancy of the property is in the joint names of Miss C and Mr K. This comes about in the following way. Mr K originally occupied the property with his wife and children. At that point the tenancy was in Mrs K's sole name. However, some time between 1984 and 1988 Mr K's marriage broke down. His wife and children left the property and some time after that Miss C moved in. At that stage Miss C and Mr K were living together as husband and wife.
In August 1988 the local authority...
To continue reading
Request your trial
-
Re O; Re J (Children) (Blood Tests: Constraint)
...[1981] 2 WLR 948, HL. B (BR) v B(J) [1968] P 466, [1968] 2 All ER 1023, [1968] 3 WLR 566, CA. C v K (inherent powers: exclusion order)[1996] 3 FCR 488, [1996] 2 FLR C (a child) (HIV test), Re [1999] 3 FCR 289, [1999] 2 FLR 1004. C (detention for medical treatment), Re[1997] 3 FCR 49, [1997]......
-
T v R (Abduction: Forum Conveniens)
...abroad) [1989] 2 All ER 465, [1989] 1 WLR 654; sub nom Re C (a minor) (abduction) [1989] 1 FLR 403, CA. C v K (ouster order: non-parent) [1996] 3 FCR 488; sub nom C v K (inherent powers: exclusion order) [1996] 2 FLR 506. E (child abduction: non-Convention country) Re[1999] 3 FCR 497, [1999......
-
Re P (Care Orders: Injunctive Relief)
...extract from the judgment is reported with the permission of Charles J. Cases referred to in judgmentC v K (ouster order: non-parent) [1996] 3 FCR 488; sub nom C v K (inherent powers: exclusion order) [1996] 2 FLR D v D (child case: powers of court) [1994] 3 FCR 28; sub nom D v D (county co......