Nottinghamshire County Council v P
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Court of Appeal (Civil Division) |
SIR STEPHEN BROWN, P, HIRST AND WAITE, L JJ
Care proceedings – application by local authority for prohibited steps order – whether local authority could apply for such an order.
Care proceedings – sexual abuse – father in need of treatment at unit for sexual offenders – local authority refusing to pay for such treatment – welfare of children requiring order that father should not live at home – father a risk to other children without treatment – no power of court to require local authority to finance necessary treatment.
Contact order – whether order for no contact fell within definition of contact order.
Procedure – application by local authority for private law order under Part II of Children Act 1989 – inappropriate for such an application to be made ex parte to a justice of a family proceedings court – matter to be transferred to a county court
Prohibited steps order – inappropriate for local authority to apply for such an order instead of applying for an order under Part IV of the Children Act 1989.
The family consisted of the parents, a boy now aged almost 19, and three girls. The eldest girl was now aged 17 and the two younger girls were now aged 16 and 14. In October 1991 the eldest girl alleged that she had been sexually abused by the father for a number of years. She also alleged that the father was sexually abusing her 16-year-old sister but the sister denied that she had been abused. As a result of the eldest girl's allegations, the local authority obtained emergency protection orders under Part V of the Children Act 1989. However, the father moved out of the family home so that the children were able to remain there. The local authority applied ex parte to a single justice of the family proceedings court for leave to apply under Part II of the 1989 Act for a prohibited steps order as defined in s 8 of the Act. The magistrate granted leave and the local authority filed an application in the family proceedings court for a prohibited steps order requiring the father to remain away from the family home and to only have contact with the children under supervision. The matter was transferred to a county court. The circuit Judge invited the local authority to apply under Part IV of the Act for a care or supervision order. It declined to do so. The Judge transferred the matter to the High Court where Ward, J also invited the local authority to make an application under Part IV of the Act for a care or supervision order and the local authority again declined to do so.
In March 1992 the proceedings in respect of the eldest girl were withdrawn on the father's undertaking not to harass, threaten or molest her. The local authority continued
with its application for a prohibited steps order in respect of the two younger girls.
At a hearing in May 1992 the Judge found that the father had grievously sexually abused the eldest girl over a prolonged period. The child had told the mother but the mother had done nothing about it. The Judge further found that there was a real risk that if the father remained in the home he would sexually abuse the two younger girls. Those two girls did not wish the father to be excluded from the home and the Judge found that there was a real risk that they would run away from home to the father if excluded. There was a frightening atmosphere of sex in the household. It was urgently necessary for the whole family to undergo some process of therapy. The father was a disturbed man who needed treatment at a clinic for sexual offenders. The hearing was adjourned to assess the parents' attitude and, in particular, the extent to which the father was prepared to accept treatment.
The matter was restored in June 1992 when the Judge was informed that the local authority was willing to provide an assessment of the father at a clinic for sexual offenders. The matter was further adjourned and during the adjournment the father attended the clinic.
At a hearing in October 1992 the clinic reported that the father accepted that he was a sexual offender with a repetitive cycle of offending, that he had the capacity to respond to treatment, that the clinic could offer him a place, and that the period of treatment would be 12 months. Although the local authority took the view that the father posed an unacceptable risk to the children while he remained in the home, it stated that it had no funds to provide the £15,000 needed to pay for the treatment at the clinic. The authority continued its application for a prohibited steps order.
The Judge held: (a) that in this case the purpose of the prohibited steps order sought by the local authority was to regulate who should reside in the household and to order no contact except as approved and supervised by the local authority; (b) that those were matters capable of being achieved by a residence order and a contact order and this was prohibited by s 9(5)(a) of the Children Act 1989; (c) that an order stating that there should be no contact was nevertheless a contact order; and (d) the fact that s 9(2) of the 1989 Act prevented a local authority from applying for a residence or contact order did not mean that the prohibition in s 9(5)(a) did not apply as that provision must be read to prevent a local authority achieving through the back door a result which could be achieved by making a residence or contact order. Having regard to these provisions, the Judge refused to make a prohibited steps order. However, he held that the court had a residual power under s.10(1)(b) of the Act to make a section 8 order of its own motion. The Judge decided that he should exercise his residual power under s 10(1)(b) to make a residence order containing directions under s 11(7) to the effect that the father should live away from the family home and should have no contact with the two younger girls except as might be effected under the supervision of the local authority's social services department.
The local authority appealed against the refusal to make a prohibited steps order. The mother, father, and the children appealed against the residence and contact orders.
Held – dismissing the local authority's appeal and allowing the appeals by the mother, father, and children.
(1) By s 9(2) of the Children Act 1989 a local authority could not obtain a residence order or a contact order. By s 9(5) of the Act a local authority could not obtain a prohibited steps order with a view to achieving a result which could be achieved by the court making a residence or contact order. An order that there be no contact fell within the definition of "contact order" in s 8 of the Act. Consequently, a prohibited steps order under which it was stated that there should be no contact except as the local authority approved was prohibited by s 9(5) of the Act. The Judge's decision to refuse a prohibited steps order would be upheld.
(2) Where children were found to be at risk of suffering significant harm within the meaning of s 31 of the Children Act 1989 a clear duty arose on the part of local authorities to take steps to protect them. A local authority was required to assume responsibility and to intervene in the family arrangements to protect the child. Part IV (ss 31 to 42) of the Act specifically provided them with wide powers and a wide discretion. In this case the local authority had applied for a prohibited steps order under Part II of the Act. The route chosen by the local authority was wholly inappropriate. There might be situations, for example where a child was accommodated by a local authority, where it would be appropriate to seek a prohibited steps order. But such an order could not in any circumstances be regarded as providing a substitute for an order under Part IV of the Act. Further, it was wholly inappropriate for the local authority to have applied for leave to issue an application for a prohibited steps order ex parte before a single justice of the family proceedings court. The matter should have been referred at the earliest opportunity to a county court.
Per curiam: It was very doubtful whether a prohibited steps order could in any circumstances be used to "oust" a father from a matrimonial home.
(3) It was inappropriate for the Judge to have made a residence order under s 10(1)(b) subject to conditions under s 11(7) of the 1989 Act as those provisions also fell within Part II, the private law section, of the Act. Therefore, that order would be set aside.
(4) The result was that there were now no orders in force capable of regulating and safeguarding the position of the children. The court was deeply concerned at the absence of any power to direct the local authority to take steps to protect the children. Since the fact of significant harm to the children had been established and not contradicted there remained upon the local authority a clear duty to safeguard the welfare of the children. The local authority should not shrink from taking steps under Part IV of the 1989 Act.
Decision of Ward, J [1993] 1 FCR 180 affirmed in part.
Statutory provisions referred to:Children Act 1989, ss 8, 9(2) and (5), 10, 11(7), 23(5), 31, 37, 41 and 100(2); and Sch 3.
Placement of Children with Parents, etc Regulations 1991.
Ian Karsten, QC and Sarah Edwards for the local authority.
Judith Parker, QC and Deborah Eaton for the mother.
Patricia Scotland, QC and Cynthia Gifford for the father.
Rodger Hayward-Smith, QC for the guardian ad litem.
SIR STEPHEN BROWN, P.The court has before it a series of appeals from a judgment delivered by Ward, J on 27 October 1992 and reported at [1993] 1 FCR 180. The Judge then refused an application by the Nottinghamshire County Council for a prohibited steps order made pursuant to s 8 of the Children Act 1989. By its application the 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...
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