Nottingham County Council v P
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,Re |
| Judgment Date | 06 April 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0406-7 |
| Date | 06 April 1993 |
| Court | Court of Appeal (Civil Division) |
[1993] EWCA Civ J0406-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION COURT
Before: The President Lord Justice Hirst and Lord Justice Waite
MISS S EDWARDS (instructed By Nottingham County Council) appeared on behalf of the Applicant
MISS P SCOTLAND Qc (instructed By Messrs Sheltons Of Nottingham) appeared on behalf of the First Respondent
MISS J PARKER (instructed By Messrs Curtis & Parkinson Of Nottingham) appeared on behalf of the Second Respondent
MR R HAYWARD SMITH QC (instructed By The Official Solicitor) appeared on behalf of the Minors
Tuesday, 6th April 1993
This is the Judgment of the Court.
The Court has before it a series of appeals from a Judgment delivered by Mr Justice Ward on the 27th October 1992. The Judge then refused an application by the Nottinghamshire County Council for a Prohibited Steps Order made pursuant to Section 8 of The children Act 1989. By its application the Nottinghamshire County Council stated that it wished the Court to order that the father should not reside in the same household as his daughters and should not have any contact with them unless they themselves wished to have contact with him and that any such contact should be supervised by the Social Services Department, such contact to be negotiated between the mother, father and the daughters with a condition that the mother should not knowingly place the daughters in a position where they come into contact or reside with the father. It stated that it was making the application:
"In order to stop/prevent the sexual abuse of the daughters by the father and its emotionally and physically damaging effects." Further that its plans for the children were "That the eldest child should reside with her mother and should receive appropriate help and resources from the Social Services Department and other appropriate agencies regarding sexual abuse. That the child should only have contact with the father at her request and under the supervision of the Social Services Department."
The respondents to the application were stated to be the mother and the father. Having refused that application by the Local Authority the learned judge proceeded to use what he described as "an almost forgotten application" by the father for a Residence Order as a basis for making a Residence Order in favour of the mother. The mother had not sought such an order but the Judge considered that he had
a discretion to make the order by reason of the provisions of section 10 of The Children Act 1989. He imposed conditions and made directions to provide that the father should not have contact with the children save such contact as should be supervised by the Social Services Department and he further ordered that the father should vacate the property and should not enter or attempt to enter the property thereafter. The Local Authority now appeals against the Judge's refusal to make a Prohibited Steps Order: The mother, the father and the children by their Guardian ad litem all appeal against the orders which the learned Judge made for residence with the mother and in particular the restrictions with regard to contact.
The appeal of the Local Authority raises important questions of law and policy concerning the power of a Local Authority to seek to make use of the private law provisions contained in Part II of The Children Act 1989 instead of proceeding by way of the public law provisions contained in Part IV of The Children Act.
The facts which led to the initiation of proceedings by the Local Authority are set out in the Judgment of
Mr Justice Ward which was delivered in open Court. The Judge's findings of fact are not challenged in any way in these appeals. On the 8th May 1992 after a hearing lasting several days the learned Judge found that the father had persistently sexually abused the eldest of his three daughters by having sexual intercourse with her and committing buggery upon her. He found that the two younger daughters whose ages brought them within the jurisdiction of the Court were seriously at risk of abuse by their father. The father in fact already had a conviction for indecent assault upon a girl who was not a member of the family. The Judge found that the mother was weak and had no capacity to protect the children and that she was probably totally under the control of her husband. He further found that if the father were to be excluded from the home there was a real risk that the girls would run away to him. On the 8th May the Judge also said about the father:
"I have no doubt whatever that Mr P is in need of help. He is a very disturbed and disturbing man. He bristles with aggression. Though he may be all bluster, he in nonetheless a man with a temper, who portrays himself as frightening. He has a frightening effect upon those he deals with."
He said further: "The all pervasive atmosphere of sex in this house is frightening. Given the harm already suffered, the risk of further harm that this man will not stop with M (the eldest girl), but will lay his hands upon the other two is a real risk which gives me cause for grave concern. As to the capacity of each of the parents to meet the girls' needs: their parents have demonstrated themselves quite unable to do so."
At that hearing in May 1992 the Judge considered the range of powers available to the Court under the Children Act 1989 and complained that the form of the Local Authority's application did not give the Court power to make a Supervision Order. He referred to the fact that the Circuit Judge to whom the case had initially been remitted had asked the Local Authority to consider this and had then referred the matter to the Authoirty under the provisions of section 37 of The Children Act. The Judge said in his judgment on the 8th May:
"I made it perfectly plain when speaking to the manager of Social Services that I felt it (the Supervision Order) would give me teeth and powers that I did not have without their application but the Local Authority refused to give me the opportunity to exercise any of the powers which are ancillary to a Supervision Order. I respect their point of view that they do not seek to remove K and E from their home not least because they could not control them if they were to take them into care. I wholly understand that dilemma. But why the Local Authority have concluded that a Supervision Order would not give the Court any useful powers that it would not otherwise have, I simply do not know."
At that stage the learned Judge adjourned the case for a period whilst the father went for assessment to The Gracewell Clinic, a well-recognised institution which specialises in the treatment of sexual offenders. When the matter came back before him on the 26th October 1992 the Judge said:
"On the 8th May of this year, after a hearing lasting several days, I adjourned the question as to whether or not a Prohibited Steps Order should be made. I required further enquiries to be undertaken by all parties. The Judgment I gave then was one which I contemplated should be released for publication, and which I now do release for publication, and a transcript of it is available."
He briefly recited the facts and issues which were then before him. He recalled that he had found that there was a grave risk of harm to the youngest two girls who were still under the age of 17 and then said at page 3 of the transcript of his Judgment:
"What made Judgment in the case difficult at that stage was the evidence which satisfied me that there was a real risk that the girls would run away to the father, even if he were excluded from the home. Faced with the difficult balancing exercise between protecting the children and keeping the family together in order to heal them, I concluded that there was a sufficiently real chance the family might be ready to respond to treatment, and so I adjourned the matter for that to be investigated. I should add that I was critical of the Local Authority for their failure to accept His Honour Judge Heald's invitation, and my invitation, to invoke the powers they have under Part IV of The Children Act 1989 to apply for a Care Order or a Supervision Order."
On the 26th October the learned Judge had before him
a report from The Gracewell Clinic and in addition he heard the oral evidence of a Mrs Still from the Clinic. The conclusions of the Gracewell Clinic were:
"Father has worked hard in the Gracewell Assessment Programme. He has begun to share openly and own up to the fact that he is a sex offender with a repetitive of offending that has been active for many years. He has identified two kinds of cycle, one relating to children 'close to home' and one to children whom he knows less well but whom he can target through the parents. His cycle pattern is that of an anger rapist."
The conclusion was that the Clinic believed that he had worked well at Gracewell and that he had the capacity to respond to treatment and they were prepared to offer him
a place subject to bed availability for a period of 12 months. However, the County Council was not able to fund such a placement and so this was not an option available to the Judge, for he had not power to compel the Local Authority to provide such a programme of treatment for the father.
The Judge continued:
"I am invited by the Local Authority to exercise my power only to make a Prohibited Steps Order. With shame I confess it partly my failure that no thought was given in May as to whether or not the Local Authority could apply for such an Order. Perhaps...
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