T (A Child)

This appeal concerns the extent to which a family court may exercise its jurisdiction to grant a non-molestation injunction under the Family Law Act 1996 to protect a child who is the subject of a full care order.

The care order, which was made in February 2013, relates to a girl, who is now aged 10 years. Her care plan has always been for placement in long-term foster care and since November 2013 she has resided with the same foster parents. Unfortunately the child’s mother and her partner, Mr JM, have never accepted the validity of the care order and, at various times, they have embarked upon serious attempts to abduct the child from her carers; one such attempt formed one of the grounds upon which the threshold criteria in the Children Act 1989, s.31 were satisfied at the time that the original care order was made. Criminal proceedings followed and the mother was convicted of an offence of conspiracy to abduct the child for which she received an 18 month prison sentence in 2013.

Prior to being placed with her current foster carers, the child had had to be moved from two previous foster homes because of the actions of her mother, supported by Mr JM.

A further complicating feature of the case, which, in combination with the mother’s dogged determination to remove her daughter from care, leads the local authority to hold a high level of concern, is the fact that Mr JM has a significant and ongoing criminal record involving offences of serious violence.

The present appeal relates to orders made by His Honour Judge Jonathan Furness QC on 31 March 2017. On that occasion the judge granted the local authority an injunction under the inherent jurisdiction of the High Court restricting the geographical movements of the mother and Mr JM so as to prevent them from coming to any part of the western side of the county in which the child lives, the boundary being delineated by one of the major national motorways. That injunction had become necessary, and geographically specific, because by that time the mother and Mr JM had traced the foster home and had, as the judge found, frequently visited the area whilst expressing an active intention to abduct the child.

This appeal, which is brought by the local authority, does not relate to any part of the injunction granted under the inherent jurisdiction for which it had applied. Neither is there any appeal before the court with respect to the judge’s findings as to the underlying facts. It is, therefore, neither desirable nor necessary for me to say any more about those aspects of the background in this judgement.

The issue which brings the local authority before this court is their desire to obtain a non-molestation order for the benefit of this child so as to establish a clear power for the police to arrest the mother and/or Mr JM in the event of any breach of that order.

Both the local authority and Judge Furness rightly accepted that long-standing authority in this court, namely Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 583, established that there was no power within proceedings under the inherent jurisdiction (whether in wardship or not) for the court to attach a power or arrest to an injunction in the absence of any statutory authority to do so.

So far as the jurisdiction of the Family Court is concerned, the relevant statutory authority is the Family Law Act 1996, Part 4. As originally enacted FLA 1996 made provision, by section 47, for a power of arrest to be attached to one or more parts of a non-molestation or occupation order made under that Act. FLA 1996, s.47 was, however, subsequently repealed and replaced by the provisions of the Domestic Violence, Crime and Victims Act 2004, which came into force in July 2007. Arrest is now governed by FLA 1996, s.42A(1) which was inserted by the 2004 Act and which provides that “a person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence”. Breach of a non-molestation order is therefore now a matter of criminal law in relation to which the police may take action, including, where appropriate exercising their ordinary powers of arrest.

Having apprehended that it was not possible to obtain a power of arrest to support any injunction granted upon their application under the inherent jurisdiction, the local authority facilitated an application by the child’s foster parents for a non-molestation order under the 1996 Act. It was, however, accepted before the Judge that such an application was bound to fail. Save for the court’s power to grant an injunction within the existing “family proceedings” under s.42(2)(b), the Family Court’s jurisdiction to make a non-molestation order is limited by s.42(2)(a) to an application for such an order which is “made….by a person who is associated with the respondent”. The existence of such an association is defined by section 62(3) and is confined to the ten factual connections which are listed there. The circumstances of these foster carers cannot to be said to be ‘associated’ with the respondents within any of the ten statutory categories and thus the foster carers’ application under the 1996 Act was dismissed.

Although there was no other formal application under the 1996 Act before the court, the local authority nevertheless submitted that the judge should make an order on the basis that the court was seized of “family proceedings”, namely the local authority’s application under the inherent jurisdiction, and that the child was “a relevant child” for the purposes of s.42(2)(b) which gives a court power to make a non-molestation order if it considers that to do so would be for the benefit of the relevant child even though no application for such an order has been made.

In the course of an obviously careful and conspicuously clear judgement, and despite his manifest concern as to the activities of the mother and Mr JM, Judge Furness rejected the local authority’s invitation to make such an order for two basic reasons.

The first reason, which is expressed by the judge in terms of reticence rather than a statement of a clear ground for refusing to make the order, is stated as follows at paragraph 79 of the judgement:

“79…this would give a rather strange result that there was no power to make a non-molestation order but, once permission was given to invoke the inherent jurisdiction, then family proceedings existed within the Family Law Act 1996 and such an order could be made for the benefit of a relevant child, making the proceedings under the inherent jurisdiction redundant. It leaves me somewhat uncomfortable about using the inherent jurisdiction only to provide a power within a different statute.”

The judge’s second reason, and as I read the judgement this was the determinative factor leading him to reject the local authority’s invitation, related to the definition of “molestation” and is expressed as follows:

“81…the provision is designed to prevent molestation. “Molest” is not further defined but has been taken to mean “pester” or conduct which constitutes such a degree of harassment as to call for the intervention of the court; C v C [2001] EWCA Civ 1625. The court cannot make a non-molestation order unless there is evidence of molestation.

82 In the present case there is evidence of watching, observing, researching habits and passing notes which are unsettling and disturbing but which have not actually been seen by [the child]. I am not convinced that this constitutes molestation to justify an order under the Family Law Act 1996.

83 Accordingly I have come to the clear conclusion that it would be stretching the legislation beyond a permissible margin to make an order under the Family Law Act 1996.”

Although, in describing the issue, I have effectively referred to the relevant statutory material, it is helpful to set it out in full at this stage.

FLA 1996, s.42, deals with “non-molestation orders”. By s.42(1) it is provided that:

“In this Part a “non-molestation order” means an order containing either or both of the following provisions:

(a)…

(b)

provision prohibiting the respondent from molesting a relevant child.”

The jurisdiction to make a non-molestation order is set out in s.42(2):

“The court may make a non-molestation order:

(a)

if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or

(b)

if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.”

The term “family proceedings” in FLA 1996, Part 4 is defined in s 63(1) as meaning proceedings ‘under the inherent jurisdiction of the High Court in relation to children’ or ‘under the enactments mentioned in [s 63(2)]’, which contains a comprehensive list of family proceedings.

FLA 1996 s.42A establishes the criminal offence of breaching a non-molestation order. A conviction for such an offence can be punished with a sentence of up to 5 years imprisonment.

FLA 1996, s.62(2) defines “relevant child” as follows:

“In this Part “relevant child”, in relation to any proceedings under this Part means:

(a)

any child who is living with or might reasonably be expected to live with either party to the proceedings;

(b)

any child in relation to whom an order under the Adoption Act 1976, the Adoption and Children Act 2002 or the Children Act 1989 is in question in the proceedings; and

(c)

any other child whose interests the court considers relevant.”

In relation to the present case it is s.62(2)(c) which is said to apply.

FLA 1996, s. 62(3) lists the ten statutory connections by which ‘a person is associated with another person’ for the purposes of these provisions. It is not necessary to set the list out here, but it is important to stress that in none of these relationships is it a requirement for one of the associated persons to be a child.

The local authority’s submission is straightforward. The authority’s application for an injunction under the inherent jurisdiction was properly constituted before the court following the grant to them of leave to do so under Children Act 1989, s. 100 by Her Honour Judge Parry on 24 February 2017. The jurisdiction had already been exercised both by Judge Parry, who granted a wide ranging interim injunction, and then by Judge Furness who granted a similar injunction in wide terms which was to run for the remainder of the child’s minority, subject to the right of any party to apply to vary of discharge it. The court therefore had before it validly constituted “family proceedings” to which the mother and Mr JM were respondents and with respect to which the child was “a relevant child”. It is submitted that section 42(2)(b) therefore gave the court the power to make a non-molestation order for the benefit of the child “even though no such application [had] been made”.

In the present case the behaviour of the mother and Mr JM has fallen short of involving any direct interaction between either of them and the child, or for that matter the foster carers. Despite serious and repeated attempts that they have made to communicate with the child and, if possible, to remove her from foster care, the child has not seen them, spoken to them or otherwise received any communication from them. Nevertheless the knowledge that the mother and/or Mr JM have behaved as they have done and have done so with the intent of gaining unauthorised access to the child and, if possible, abducting her, has led the foster carers and the child to live their day to day lives on a very restricted basis. A statement from the foster carers dated 21 March 2017, which was before the judge, describes the impact on their lives from knowing that the mother and Mr JM have discovered a good deal of information about them. The statement included the following:

“…We are also aware that during the recent hearing (8 March 2017) Mr [JM] gave evidence to the court which suggests that he and the mother have acquired a great deal of information about us and have made a practice of researching our lives and activities. Despite our details having been given to only a limited number of professionals we understand that mother and her partner have details of our names, address and business, as well as our daily routines and activities. We do not know of any reason why they would have sought out this information other than as a means of trying to gain access to [the child]. We remain completely committed to caring for [the child] but the activities of [mother and Mr JM] are very frightening and unsettling and constantly in our minds. We can never be sure that she is entirely safe or whether someone is watching her or us.

5 The situation impacts mostly on [the child] as she cannot attend her after-school activities. We have to risk-assess everything. She has missed out on sleepovers and birthday parties. We cannot leave her with anybody due to the situation so that puts immense pressure on us both if we have to go for a simple appointment….The only respite we get is on holiday where we can let our guard down a little and allow [the child] a bit more freedom….

6 We are constantly on guard and have to keep [the child] within our sight. We are also worried about our own safety, [the child’s] safety and members of our family. The mother and Mr JM are obviously aware of our daily routines so we are vulnerable. We can’t allow [the child] to play outside or ride her bike. We have to take her into school and collect her at the end of the day which makes her different as we cant’ drop her off and allow her to go into school on her own as happens with other children of her age and developing maturity. We try to carry on as normal but are always on high alert….Following the recent incident [the child] was angry that she might have had to miss a school trip as a result of her mother’s actions. From her point of view, she simply sees that her mother’s behaviour is placing restriction on her activities.”

The 1996 Act does not contain any definition of “molestation”. When called upon to do so, this court has consistently avoided giving a precise definition. In Horner v Horner [1983] 4 FLR 50 Ormerod LJ said, at page 51 G :

“… I have no doubt that the word “molesting”…does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court.”

In like terms Sir Stephen Brown, President of the Family Division, in C v B (Non-molestation order: Jurisdiction) [1998] 1 FLR 554 :

“…There is no legal definition of “molestation”. Indeed, that is quite clear from the various cases which have been cited. It is a matter which has to be considered in relation to the particular facts of particular cases. It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court.”

In C v C [2001] EWCA Civ 1625 Lady Justice Hale (as she then was) held that the granting of a non-molestation injunction was justified in circumstances where the conduct complained of “was calculated to cause alarm and distress to the mother.”

In the decades that have followed those judicial utterances those sitting in the Family Court have, on a day by day, case by case, basis, deployed good sense and judgement in determining whether or not particular conduct amounts to “molestation”. In my view this court should continue to be very wary of offering any further precision in the definition.

Mr Dominic Boothroyd, who has presented the local authority’s case in an attractive, clear and properly measured fashion, accepts that, subjectively, the mother is unlikely to have intended to cause the child harm by her actions or those of Mr JM. Intention is not, however, he submits, a necessary element in establishing conduct which amounts to “molestation”. It is sufficient if the conduct is deliberate and that it has the consequence of causing or being likely to cause distress or “harassment” to the child.

Despite the fact the local authority was granted permission to appeal with respect to the non-molestation order on 19 July 2017, neither the mother or Mr JM have submitted any document or other response to the substance of the appeal. The mother has, however, used the currency of the present appeal proceedings to try to open up her own appeal against the original care order. Initially she prepared a form of Respondents Notice relating back to matters in 2012 and 2013; however that Notice was never formally issued. More recently she issued her own free-standing application for permission to appeal against the original 2013 care order [B4/2017/2524] which I refused, after consideration on the papers, on 23^rd October 2017 on the basis that the application was ‘totally without merit’.

Neither the mother nor Mr JM attended the hearing of the appeal before this court on 7 November 2017.

On 6 November the mother contacted the Court of Appeal office and applied for an adjournment firstly so that she could arrange paperwork that she intended to submit to support her challenge against the original care orders and, secondly, because she claimed to be incapacitated as a result of experiencing back pain over the course of the previous two weeks. That application was made by e-mail, without any supporting documents. It was refused, but the court indicated that any further application for adjournment would be reconsidered if supported by relevant medical evidence.

At 10.15am on the 7 November (the appeal hearing day) the mother submitted an e-mail containing attendance records indicating that she had sought attention at a local hospital Accident and Emergency department on 3 November for right hip pain and that, on the same day, she was given a prescription for painkillers. E-mail correspondence with a local chiropractic clinic indicated that she had received some treatment in the period prior to 6 November. Finally, she submitted a computer record of her request for her GP to provide a report giving an account of an x-ray that she had had at the local hospital which would indicate a fracture to the L5 region of her back together with the existence of age degenerative dislocated discs. The covering e-mail from the mother to which these various documents were attached stated that she could also provide a statement from a police officer who “witnessed the fall on the 11 October 2017” and that she was awaiting a further medical report “from the 23 October 2017, when I received treatment at the spinal clinic.”

The judgement of HHJ Furness includes a recital of a number of attempts by the mother to obtain adjournments at the various hearings in or around March 2017 for various stated reasons none of which, it is plain, were entertained as valid by the judge.

Having considered the material submitted by the mother, we refused her application for an adjournment. We did so for two reasons that can be shortly stated. Firstly, none of the material that she has submitted indicates that she would be physically unable to attend court. The various attendances referred to at a spinal unit, the chiropractic clinic and the hospital A&E department have been achieved by the mother in the past two weeks. Her attendance at hospital only three days before the hearing is recorded as being “by private transport”. Secondly, the point at issue on this appeal is, at bottom, a point of law. Neither the mother nor Mr JM has submitted any document whatsoever in response to the appeal. There is no basis for believing that, if she did attend, she would have any positive case to put in response to the local authority’s legal submissions regarding the court’s jurisdiction to grant a non-molestation order.

Mr JM is, we were told, currently serving a sentence of imprisonment. He has been served with the appeal proceedings and has not taken any step to engage with the process.

We therefore proceeded to hear and determine the local authority’s appeal.

Having taken some time to set out the background, it is possible to express my conclusion on the central issues in this appeal in short terms.

Firstly, there is no room for doubt that the court had jurisdiction to consider granting a non-molestation order for the protection of the child in this case under FLA 1996, s.42(2)(b). The court was seized of validly constituted ‘family proceedings’ (s.63(1)), namely the local authority application under the inherent jurisdiction. I do not share the judge’s sense of reticence in relying upon the existence of those proceedings as a jurisdictional platform for considering granting a non-molestation order under s.42(2)(b). The application under the inherent jurisdiction had been properly made in order to achieve substantive relief in the form of an injunction to protect the child, the foster carers and their immediate environment. Permission to bring that application had been granted by HHJ Parry under CA 1989, s.100 and both that judge and HHJ Furness had granted wide-ranging injunctions under the inherent jurisdiction. The inherent jurisdiction application was not some empty procedural tree, the fruit of which was to be discarded as soon as the looked-for non-molestation order had been secured. The inherent jurisdiction injunction was fixed by the judge to run for the child’s minority and there is no reason why it would have been, or should have been, discharged or superseded if a non-molestation order had also been imposed.

Looked at on a wider basis, it must be the case that, for s.42(2)(b) to operate, there will always be some other application in ‘family proceedings’ before the court, on the back of which the court will have jurisdiction to consider making a non-molestation order for the benefit of a child even if there has been no formal application made for one under FLA 1996. The provision in s.42(2)(b) is there to supplement the jurisdiction of the court in other family proceedings (for example under the Matrimonial Causes Act 1973 or the Adoption and Children Act 2002) where, because the non-molestation jurisdiction is confined to the 1996 Act, there is no other power to make a non-molestation order backed up with the criminal sanction now contained in s.42A(1). In contrast to the approach of the judge, therefore, I do not regard this as a rather strange result; on the contrary, this would appear to be the result to which s. 42(2)(b) is targeted so that, as here, where a non-molestation order may be justified, the court has jurisdiction to grant it for the protection of a ‘relevant child’.

The importance of s.42(2)(b) within the structure of FLA 1996 is not to be understated. There are two separate jurisdictional avenues by which the court may make a non-molestation order. Firstly, under s.42(2)(a) which is limited to cases where an application for a non-molestation order has been made by ‘a person who is associated with the respondent’; this provision is therefore very largely limited to adult relationships and it is not expressly focussed upon the protection of any relevant child. Secondly, and separately, there is the wider jurisdiction to protect ‘any other party to the proceedings or any relevant child’ under s.42(2)(b). The purpose of s.42(2)(b) would seem to be clear; it is the means by which the court may make orders for the protection of children whose circumstances have come to the notice of the court in other family proceedings.

In the present case, the local authority’s aim was to achieve the protection of the child and her carers from the worrying and troublesome actions of the mother and Mr JM. Once it was accepted that any order under the inherent jurisdiction could not be supported by a power of arrest, it was a perfectly legitimate step for the local authority to ask the court to consider granting a non-molestation order under the 1996 Act by utilising the jurisdiction provided by s.42(2)(b) which is designed precisely for the purpose of supplementing the court’s jurisdiction in other ‘family proceedings’ in this way.

When determining whether or not particular conduct is sufficient to justify granting a non-molestation order, the primary focus, as established in the consistent approach of earlier authority, is upon the ‘harassment’ or ‘alarm and distress’ caused to those on the receiving end. It must be conduct of ‘such a degree of harassment as to call for the intervention of the court’ (Horner v Horner and C v B). Although in C v C the phrase ‘was calculated to cause alarm and distress’ was used, none of the authorities require that a positive intent to molest must be established.

Prior to the introduction of the Family Procedure Rules 2010, the template order applicable to non-molestation orders (Form FL404), which was given statutory effect by the Family Proceedings (Amendment) Rules 2007, in addition to a clause relating to ‘violence’ included a provision requiring a respondent not to ‘intimidate, harass or pester’ the applicant or a relevant child. Although Form FL404 is no longer a named as a statutory form under the FPR 2010, the phrase ‘intimidate, harass or pester’ remains in the form of ‘non-molestation omnibus order’ which is currently the subject of consultation.

The jurisdiction under FLA 1996, Part 4 aims to protect a victim from molestation, rather than, as would be the case under the criminal law, to convict and punish a perpetrator. The statutory requirement in s.42(5), which does not make any reference to the intention of the respondent, is for the court to have regard to all the circumstances ‘including the need to secure the health, safety and well-being’ of the applicant or a relevant child.

In the present case, on the judge’s findings, the mother and Mr JM had been involved in a concerted course of conduct in which they had traced the child’s foster home some three years earlier and identified her school. The mother told the judge that she had been to the area of the foster home, which is a significant distance from her own home, to observe the child on more than 30 occasions over the previous three years. In 2015 she had left a card one night next to the foster carer’s car; the card said ‘you only have one Mammy, I will have you back, and it won’t be long now’. More recently, in February 2017, the mother accepted that she had asked two boys at the child’s school to pass a note to the child which read: ‘Mammy loves you and is coming to take you home soon. Do not show anyone. Put in bin after reading. Show no one.’ The boys very sensibly immediately passed the note to the headteacher. The judge held that this was a genuine expression of the mother’s intention to abduct the child.

The judge accepted that the passing of the more recent note, although it had not been seen by the child, had immediate consequences for the foster carers and the child. He accepted the validity of the foster carer’s account to which I have already made reference.

Two weeks later, on the 1^st and 2^nd March 2017, the mother was observed on a number of occasions in the area of the foster home.

The judge made a number of findings which included:

The judge concluded his findings in these terms:

‘62. I am satisfied that the mother’s current behaviour, supported by JM who has travelled up to [the area] on 2-3 occasions he told me, threatens her placement again. It is wholly unjustified and leads to a clear detriment for [the child] – everyone must be on their guard, safeguarding measures are in place, there is police involvement, the school have been warned and the foster parents are constantly on their guard. It is extremely unsettling for the foster parents of [the child], and in my judgment is positively harmful to [the child] and, if it [is] allowed to continue, is likely to lead to the termination of the placement and significant harm to [the child].

63.

I am absolutely satisfied that [the child] needs the protection of the Court to be able to live her life, safely, freely and happily. If she is not afforded such protection she is likely to suffer disruption and significant emotional harm. Her welfare demands that I protect her from the mother and from Mr JM’.

At paragraph 80 the judge, rightly, considered the statutory test under FLA 1996, s.42(5):

‘For the reasons which I have already outlined any consideration of the circumstances of the case including the need to secure the health, safety and well-being of the applicant or any relevant child would clearly indicate the necessity for an order.’

Despite making a clear finding that the child was likely to suffer significant emotional harm if the mother and Mr JM’s conduct continued, and despite holding that, by applying the relevant statutory criteria, an order was clearly necessary, the judge nevertheless declined to make a non-molestation order for the reasons given at paragraphs 81 to 83 (set out at paragraph 14 above).

The judge’s conclusion, that, because the actions complained of had not actually been seen by the child, this did not constitute molestation sufficient to justify an order under the 1996 Act seems to have been based upon the absence of any direct, one-to-one, harassment of the child by the mother or Mr JM.

Although the judge is a most experienced family lawyer and judge, I am clear that his conclusion was made in error. There is no requirement in either the 1996 Act or the case law for there to be some direct interaction between the respondent and the applicant or child in order to establish the basis for granting a non-molestation order. The judge’s finding that the mother and Mr JM’s conduct was ‘positively harmful’ to the child and, if continued, would be likely to cause significant harm, was more than sufficient to justify exercising the powers under s. 42. The impact on the child’s life of the mother and Mr JM’s conduct, as described by the foster carers and as found by the judge, plainly amounts to harassment and, as the judge held, applying the s. 42(5) criteria, makes the granting of an order clearly necessary. Where, as here, a judge has held that the child’s very placement with the foster carers was threatened by the actions of this ‘desperate’ mother, it was in my view, erroneous to hold that the court lacked jurisdiction to make a non-molestation injunction.

It follows that, if My Lords agree, the appeal must be allowed.

On the basis of the very clear findings made by the judge, and on the basis that it is plain that he considered the granting of an injunction as being a ‘necessity’ as against the s. 42(5), only holding back from doing so because of an erroneous (as I have held) view of the law, there would seem to be no merit in this court now referring the case back to the High Court for a re-hearing. We are in as good a position as the judge to re-determine the issue and, as only one outcome is justified on the facts as found, I would grant a non-molestation order against the mother and Mr JM.

Mr Boothroyd has submitted a draft order which, subject to amendments, I would approve. The respondents have not yet seen the terms of this order and, if they wish to apply to vary its terms or for its discharge, they are at liberty to apply back to the High Court for that purpose.

I agree with the judgment of Lord Justice McFarlane

I agree