Birmingham City Council v SK

In this matter I am concerned with one young person, SK, born on 25 May 2000 she is 15 years of age.

The local authority asserted that SK was a young person at risk of child sexual exploitation and issued care proceedings in respect of her on 12 March 2015. It issued an application for an injunction against the alleged perpetrator of the child sexual exploitation on 19 March 2015.

In light of subsequent developments, to which I will refer, the local authority now seeks permission to withdraw the application for injunctive orders.

SK, from the age of 13, was absenting herself form the family home. It was discovered that she was keeping the company of much older men. She was beyond the control of her parents. Her case came to the attention of the local authority and of the police. Hence the care proceedings were issued and an application for an injunction was made against an individual, LG, who it was believed was sexually exploiting SK.

There was a meeting of MASE on 5 October 2014 when he was mentioned as a possible perpetrator of child sexual exploitation against SK.

The local authority thus made the application for a Birmingham City Council v Riaz and othrs [2014] EWHC 4247 (Fam) [2015] 2 FLR 763 (‘Riaz’) style injunction against him. On the basis of the information then before me on 24 March, I granted the injunction as sought.

Within days of making that order, however, it became evident that there had been a serious lack of communication and/or a misunderstanding between the police and the legal department of the local authority. It also became clear that LG had quite wrongly been identified as a possible perpetrator of a child sexual exploitation of SK at the multi agency meeting held on 20 January 2015.

Quite properly the local authority immediately applied to me to discharge the injunction against LG. I granted the same but required a detailed explanation from the local authority and from the police as to how such a serious mistake had been made. I was promptly provided with an explanation which I accept. I do not propose to lengthen this judgment by reciting the same save that I accept it was a genuine and unintended error borne of lax and less than rigorous procedures.

The local authority and the police, with the court’s approval, wrote an entirely suitable and regretful letter of apology to LG. The material passages of that letter are:

“… The order had been granted by the High Court on the basis of evidence and information gathered by the local authority in the exercise of its safeguarding duties. The information that indicated that you might have involvement with the individual named in the order was provided to the local authority by West Midlands Police at a meeting on 23^rd September 2014, again as part of safeguarding procedures….

….On the 27^th March 2015 information was received by the local authority legal department from West Midlands Police. That information made clear that it was not thought that you were in fact involved with the child in question….

….The reason that Birmingham City Council sought an order against you was that information was received from West Midlands Police (WMP) at a social services meeting in September 2014, that there was a log connecting you to a relevant address and potentially to the child in question.

However, a break down of safeguarding procedures within the local authority meant that this link with LG was considered to be accurate even after, at another safeguarding meeting on the 20^th January this year, West Midlands Police made it clear that LG was not thought to be involved with the child.

Prior to the hearing at court on the 24^th March 2015 the local authority sought to ensure that the information it relied upon remained accurate. However, the steps taken failed to highlight that you were not involved with the child…..”

The positive outcome of this most serious and unfortunate set of circumstances has been the creation of a Protocol devised by the local authority and the police. It is an extremely helpful document which is the result of many, many hours of discussion and debate between the various agencies engaged in the field of child sexual exploitation.

The Protocol covers all stages of the investigation of cases of child sexual exploitation. The relevant parts of the Protocol dealing with the approach to and issue of court proceedings are set out in Stages 5 and 6 namely:

In my judgment, the Protocol provides an invaluable tool and guidance on the proper approach of the police, local authorities and other relevant agencies to cases of child sexual exploitation. It highlights the need for all of those agencies to work co-operatively together and to engage actively with suspected cases of child sexual exploitation in an attempt to negate or, at least, ameliorate, the adverse affects of the same.

The parties raised the issue of the difference of view which I expressed in the case of Riaz and that expressed by Hayden J in the case of London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) (‘Redbridge’). Whereas I had been prepared to make an injunction which protected not only the subject child of sexual exploitation, but of other unnamed young people under the age of 18, Hayden J was not convinced that it was permissible to exercise the protective aspects of the inherent jurisdiction beyond that of the subject child.

Thus there was an issue about which approach was right. It had been proposed that the court should consider the rival arguments of the parties on this point and consider the implications, if any, of the coming into force of s. 122A of the Sexual Offences Act 2003, namely the Sexual Risk Order.

It became apparent, however during the course of oral submissions that in the absence of the local authority seeking an injunction against any individual to protect SK from sexual exploitation, that the legal arguments on this important issue had become academic. The court’s determination of those arguments would not have any bearing on the orders the court would or would not make on the local authority’s application for permission to withdraw the application for an injunction.

Accordingly, in light of the decision of the Court of Appeal in Re X(Court of Protection) [2015] EWCA Civ 599, I could not properly express a concluded view between the competing decisions in Riaz and Redbridge.

In deference, however, to the very considerable and substantial written submissions presented by both leading and junior counsel for the local authority and for the children’s guardian, I propose to set out their respective principal submissions. I intend no disrespect to counsel by doing so in summary form.

The local authority summarised the approach taken in Riaz as follows:

“In making the orders the Court determined that:

The use of the inherent jurisdiction to make injunctive orders to prevent child sexual exploitation struck at the heart of the parens patriae jurisdiction of the High Court. None of the statutory or the self-imposed limits on the exercise of the jurisdiction prevented the court from making the orders sought by the local authority in this case

The Court was satisfied that the local authority had demonstrated on the balance of probabilities that each of the respondents had sexually exploited the girl. In all of the circumstances, it was clear that unless prohibited from doing so, there was a real risk that each of the respondents would seek to sexually exploit other vulnerable females under the age of 18. It was fair, proportionate and necessary to make the injunctive orders sought by the local authority against each respondent.

There was every prospect that the local authority and police could and would ensure that the injunctive order would be obeyed and, if necessary, enforced. There was a real prospect that something would be gained from the order, namely: (i) the protection of this girl and other vulnerable young females; (ii) the prevention of the 10 respondents from engaging in child sexual exploitation; (iii) hopefully to act as a deterrent to other adult males from engaging in child sexual exploitation.

The absence of any objection by the respondents to the terms of the order sought did not absolve the court of the responsibility to ensure the terms of the orders were fair, necessary and proportionate to the facts of the each case and the risks identified and were clear in what was or was not prohibited by the order. Moreover it must be capable of being enforced”

In respect of the decision in Redbridge the local authority submitted that:

“Hayden J held that “the inherent jurisdiction of the High Court to protect or further the interests of a child, which was to be used sparingly and in a manner faithful to the jurisdiction’s evolution with extreme circumspection, was exercisable only in relation to an identified or known child who was the subject of proceedings; that however well-intentioned the ambition to prevent child sexual exploitation generally, the framework within which such children were to be safeguarded and protected was properly a matter for parliament to create and the courts to enforce; and that, accordingly, the injunctive relief sought by the local authority, relating as it did to unidentified female children, was outwith the powers of the court.

He further commented that “It would seem that the wider protection contemplated by the local authority may, in due course, be available in the form of a sexual risk order made by the magistrates court upon complaint by a chief officer of police, pursuant to section 122A of the Sexual Offences Act 2003, as inserted. There are sound reasons why the criminal courts are the correct venue to consider the making of these orders”. see paragraphs [48]-[49]

In paragraphs 37 to 38 there are the following observations:

“…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. [37] Whilst sympathetic to the objectives of this local authority and indeed to those of Keehan J in the Riaz case…I think Ms Johnson is correct when she says 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 its 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. [38]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….”

Further at paragraph 43 he stated:

“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.”

The local authority helpfully set out the historic development of wardship and of the inherent jurisdiction in making the following submissions:

“In the Matter of M the President drew attention to the case of Wellesley –v- Duke of Beaufort (1827) 2 Russ 1 a case argued in the High Court of Chancery before Lord Chancellor Eldon concerning the ‘Jurisdiction of the Court to control the legal rights of a father over his children, on the ground of his immoral conduct’. The arguments addressed on behalf of Mr Wellesly included the following “Granting that the Court has authority to control, under certain circumstances, the legal rights of the father, it must be admitted that the jurisdiction is of the most delicate nature, to be administered with the utmost caution, both on account of the sacred character of the ties which it severs, and of the mischief and danger which must flow from exerting it improperly. The origin and principle of the jurisdiction is involved in obscurity. Some have supposed that it belongs to the King, as parens patriae, and that from him it devolves upon the Chancellor as representing the Crown in this branch of the royal prerogative. If this theory were true, the Court would interfere in the case of the children of the poorest subjects as well as the highest; but in point of fact, it has never interfered, except where there is property with which it could deal. At other times, the jurisdiction has been represented as having descended from the Court of Wards, when that court ceased to exist, upon the Court of Chancery. It may be doubted whether, in point of fact, there is any ground for such a supposition; but at all events, such powers as could be derived from the Court of Wards, could not have any application to a case like the present; for the object of the Court of Wards was to protect the interest of the lord and not to control the legal rights of the father on moral or religious grounds. The jurisdiction, whatever be its origin, is, in its practical application founded merely on precedents; and, by the same precedents are the limits defined which it ought not to exceed. Where, then, is a case to be found at all similar to the present? The Court has never interfered under circumstances similar to those which are alleged to exist here; and what it has never done heretofore it ought not to do now. If the jurisdiction is to be extended to new classes of circumstances, care, at least must be taken not to interfere, except in very clear cases……”

In considering the circumstances and arguments in the case the Lord Chancellor remarked as follows “...accordingly a bill is filed, which places the fortune, and consequently the care and custody of the children under the protection of this Court, Mr Wellesley being then abroad, it was quite clear (according to all that has long been settled in this Court) that, notwithstanding the acknowledged legal right of a parent to the custody of his children, the Court, if he were aboard, and their property were put under its care, would not suffer him to interfere with respect to the infants; because it could not make him responsible for his conduct towards them; and it has always been the principle of this Court not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done…..”

At [20] followed this consideration of the origin and nature of the jurisdiction. “I do apprehend that, notwithstanding all the doubts that may exist as to the origin of this jurisdiction, it will be found to be absolutely necessary that such a jurisdiction should exist, subject to correction by appeal, and subject to the most scrupulous and conscientious conviction of the judge, that he is to look most strictly into the merits of every case of this kind and with the utmost anxiety to be right, It has been questioned, whether this jurisdiction was given to the Court upon the destruction of the Court of Wards (which, however it is impossible to say could have been the case, when we recollect the nature of the jurisdiction), or whether it is to be referred to circumstances and principles of a different nature; or more especially, whether it belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them. With respect to the doctrine that this authority belongs to the King as parens patriae, exercising a jurisdiction by this court, it has been observed at the Bar, that the Court has not exercised that jurisdiction, unless there was property belonging to the infant to be taken care of in this Court, Now, whether that be an accurate view of the law or not; whether it is founded on what Lord Hardwicke says in the case of Butler –v- Freeman (Ambler 303), “that there must be a suit depending relevant to the infant or his estate” (applying, however, the latter words rather to what the Court is to do with respect to the maintenance of infants); or whether it arises out of a necessity of another kind namely, that [21] the Court must have property in order to exercise this jurisdiction; - that is a question to which, perhaps, sufficient consideration has not been given. If anyone will turn his mind attentively to the subject, he must see that this Court, has not the means of acting, except where it has property for the use and maintenance of the infants.

That such has been the doctrine of this Court for a long series of years, no-one can deny. The law makes the father the guardian of his children by nature and nuture. An act of Parliament has given the father the power of appointing a testamentary guardian for them; one should think that the guardian so appointed must have all the authority that Parliament could give him; and his authority is, perhaps, as strong as any authority that any law could give, But it is above a century ago, since, in the case of the Duke of Beaufort –v- Berty (1 P Wms. 703), the Lord Chancellor of that day, Lord Macclesfield determined that the statute guardian was subject to all the jurisdiction of this Court……..And he went further, for he added “that, if he had a reasonable ground to believe that the children would not be properly treated, he would interfere, upon the principle that preventing justice was preferable to punishing justice”……..

[23] …..wherever the power of the law rests with respect to the protection of children, it is clear that it ought to exist somewhere: if it be not in this Court, where does it exist?

The case was appealed and the report of the appeal appears as Wellesley –v- Wellesley [1828] 2 Bligh N.S. [124] as per Lord Redesdale [131]-[132] “ I think there can be no doubt, therefore, that the law of this country has reserved to the King the prerogative for the protection of infants, to be executed in such manner as the constitution requires him to exercise all his prerogatives…” and at [142]-[143] “There was an observation of Mr Brougham on the subject, that the jurisdiction could not exist, because you could not ascertain the limits of it. That objection applies to every case where there is a discretion in the judge; where the result of the facts is not a question of law but a question of discretion. It is therefore impossible to say what are the limits of that jurisdiction; every case must depend on its own circumstances….”

In Re Spence in 1847 reported at 2PH 247 the Court again had cause to consider the existence/extent of the jurisdiction with the then Lord Chancellor at [252] declaring that “the cases in which this court interferes on behalf of infants are not confined to those in which there is property. Courts of law interfere by habeas for the protection of the person of any body who is suggested to be improperly detained. This court interferes for the protection of infants, qua infants by virtue of the prerogative which belongs to the Crown as parens patriae and the exercise of which is delegated to the Great Seal”

After undertaking that review of the development of this jurisdiction, Ms Meyer QC and Mr Nuvoloni, on behalf of the local authority, posed the following questions:

“Does not the proper evolution of the Inherent Jurisdiction of the High Court to protect children allow, in circumstances where a legitimate application has been brought before it to protect a specific child against a specific risk from an identified person, or group of identified people, enable the Court to cast its cloak of protection over others where the facts of the case and the Court’s own findings in the proceedings in which the perpetrator has been at full liberty to play a part, identify that they will be at real risk of sexual exploitation? Is this not particularly the case where such treatment could, and would be likely to, amount to inhuman and degrading treatment for the purposes of Article 3 against which the state has a positive obligation to protect? The local authority would submit that the use Inherent Jurisdiction is of necessity such a flexible tool that it can remedy such a lacuna. ”

In support of their submissions in respect of the adaptability of the inherent jurisdiction they rely on the judgment of the President in Re M (Children) [2015] EWHC 1433 (Fam) where he observed at paragraph 32 that:

“I merely observe that cases such as this demonstrate the continuing need for a remedy, which despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention – risk to life or risk of degrading or inhuman treatment - is surely unproblematic…”

I was referred to the landmark case of A v Liverpool City Council [1982] AC 363 when the House of Lords noted that:

“the general inherent power of the court was available to fill gaps or supplement powers of the local authority but not to supervise the exercise of a discretion within the field committed by statute to the local authority”.

In respect of the extent to which the exercise of the inherent jurisdiction may be curtailed by legislation, reliance was placed on the judgment of Lord Wilberforce in Shiloh Spinnes Ltd v Harding [1973] AC 169 when he said at paragraph 725:

“in my opinion where courts have established a general principle of law or equity, and the legislature steps in with legislation in a particular area, it must, unless a showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law. To suppose otherwise involves the conclusion that an existing jurisdiction has been cut down by implication, by an enactment moreover which is positive in character …..rather than negative”

I was referred to a number of authorities which were examples of cases when the courts had evolved the use of the inherent jurisdiction, which had been, at the time, regarded as novel and innovative and where there had been no clear authority to support or explicitly provide for the relief sought, namely Re S (Adult: Refusal of Medical Treatment) [1992] 4 All ER 671; Re SK (An Adult) (Forced Marriage: Appropriate Relief) [2004] EWHC 3202 [2006] 1 WLR 81; Re SA (Vulnerable Adult with Capacity) [2005] EWHC 2942 [2006] 1 FLR 867 and O v P [2015] EWHC 935 (Fam).

The local authority noted the introduction of a new statutory provision, the Sexual Risk Order, pursuant to ss 103A-K and 122A-K of the Sexual Offences Act 2003. These orders enable courts to make orders prohibiting a wide range of acts and behaviours for the purpose of protecting the public from harm from the defendant and harm is defined as ‘physical or psychological harm caused by the defendant doing a sexual act’.

Only the police or the National Crime Agency may make an application for a Sexual Risk Order. The local authority submits that:

Thus, submits the local authority, an application to make injunctions in cases of child sexual exploitation under the inherent jurisdiction neither thwarts the will of Parliament nor is it a ‘devious entry by the back door where Parliament has so firmly shut the front door’. Rather it is an entirely permissible application to fill a lacuna in the new legislative provision.

Furthermore the extension of use of the inherent jurisdiction to afford protection to children other than the subject child is a legitimate, albeit novel, course to adopt to afford protection to potential victims of child sexual exploitation.

In the alternative Ms Meyer QC and Mr Nuvoloni assert that the court has jurisdiction to grant injunctive relief in cases of child sexual exploitation through a combination of the provisions of s 222 of the Local Government Act 1972 and s 37(1) of the Senior Courts Act 1987. The former provides that:

(1)Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area –

(i)

They may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings may institute them in their own name, and

(ii)

They may in their own name, make representations in the interests of the inhabitants at any public inquiry held by or on behalf of any Minister or public body under any enactment.

…..

These provisions have been invoked by the courts to make wide ranging injunctions against person known and unknown, eg to disrupt the activities of ‘boy racers’. In Birmingham City Council v Shafiand Another [2008] EWCA Civ 1186, [2009] 1 WLR 1961 the Court Appeal observed that:

“Taking the language of section 222 at its widest, therefore it might be thought that the only remaining question for the judge was whether it was just and convenient to grant the injunction sought. However, the authorities show, that it is not as simple as that because it has long been recognised that court’s powers to grant relief by way of injunction is to be exercised only in support of some legal or equitable right. This gives rise to special considerations in cases where the interests of the public as a whole, or at any rate a section of the public, are affected or where rights enjoyed by the public are infringed. It is likely to be in cases of that kind that the local authority will wish to take action for the benefit of those who live within its area.”

Ms Meyer QC and Mr Nuvoloni neatly summarised the local authority’s position as follows:

“As a result of the matters set out above it is submitted on behalf of the Local Authority that:

(1)

The Inherent Jurisdiction for the protection of children from harm, not limited to wardship, is exactly that a jurisdiction which enables the Court to intervene in the lives of children, as children, who are unable to protect themselves from harm.

(2)

The children who are British subjects, or are present in the jurisdiction, are able to take advantage of and should benefit from that jurisdiction in appropriate circumstances.

(3)

The evolving use and principles upon which the High Court acts on operating such jurisdiction is rightly said to have been protective and preventive as opposed to just custodial.

(4)

Whilst it cannot be demonstrated by decided case authority that the High Court has extended the use of its orders to children who were not the subject of the proceedings before it nor is there binding authority which clearly indicates that such use, in appropriate circumstances, is outwith the limits of the jurisdiction.

(5)

It is clear that in theory the jurisdiction is limitless save as clearly prescribed or curtailed by statutory provision or binding authority. The restrictions in section 100 Children Act 1989, save for the requirement of leave for its exercise when sought on behalf a Local Authority, and within that the lack of alternative Children Act 1989 or other relief for which the local authority is entitled to apply, do no apply in the circumstances of the orders sought.

(6)

As a principle the jurisdiction has clearly been available to the local authority to support and supplement its statutory duties and where necessary to fill any lacuna in statutory provision.

(7)

The Inherent Jurisdiction is (and always has been) a flexible and evolving one which adapts to meet new problems within society and for children and which provides new remedies where they are necessary to protect the welfare of children.

(8)

The Local Authority has a responsibility to reduce the number of children within its area being made the subject of secure accommodation order. Both it and the Court are subject to the provisions of the Human Rights Act 1989 and are therefore required to take active steps to protect children from a known and identified harm.

(9)

Where the Inherent Jurisdiction is exercised to protect children from harm who are not the direct subject of the proceedings or under the court’s care (by virtue for example being a ward of court) and where the protection sought for them involves interference with the rights of outside parties the welfare of the child is not the paramount consideration but remains an important factor in the balancing act.

(10)

In such a case the Court would need to consider the impact of any proposed measure on the relevant human rights of the person against whom the injunction is sought.

(11)

The Court’s powers without question include the power to grant injunctions against outside or third parties in the appropriate case subject only to the test of necessity and proportionality. As in Riaz the court would also necessarily consider the ability for any injunction to be enforced.

(12)

Where, therefore, the Court has before it an application by a local authority for the exercise of the jurisdiction by way of injunctive relief to prevent sexual exploitation of a child and where, the Court finds that a person has engaged in sexual exploitation or steps preliminary to it and poses a risk to all, or a specific class, of children under the age of 18 years it is entirely within its powers, and responsibilities, to extend the injunctive relief to those other, unidentified children, in a proportionate manner, unless it is unnecessary to do so due to other protection via another source already being in place or imminently likely to be in place, such as the sexual risk order. However the Court must also have the power, effectively to make interim orders prior to, or final orders in the absence of any real prospect of, such order being applied for or made. Any injunction made by the High Court can be expressed to lapse or be subject to an application for discharge in the event of a sexual risk order being made.

The lack of being able to identify by name a specific beneficiary has not prevented the High Court from granting injunctive relief in other scenarios and should not therefore, by itself, prevent the Court from exercising its protective relief.”

The Children’s Guardian was broadly supportive of the approach I took in the Riaz case. Mr Pressdee QC and Ms Wehrle, on behalf of the guardian, however, took the stance of arguing the opposing case which was extremely helpful to the court.

In relation to the injunctive orders made in Riaz, Mr Pressdee and Ms Wehrle submitted that:

“Thus the approach taken in Riaz is arguably not just “bold and innovative”, but revolutionary in extending not the ambit of what can be ordered but of whom can be protected beyond the child(ren) subject of proceedings.”

They submit that whilst the inherent jurisdiction has been described as ‘amorphous’ and ‘ubiquitous’ and the doctrine is flexible and limitless, that does not mean it should not be used without care and attention. Further the past deployment of the jurisdiction has been:

“But all of those descriptions arise by reason of the doctrine’s deployment within cases:

(a)

in relation only to the children subject of those cases; and

(b)

to describe the nature of the orders made in relation to and perhaps particularly to protect those specific children.”

The Children’s Guardian submits that the court should exercise the inherent jurisdiction cautiously and where there is no option other than to use the inherent jurisdiction. Thus it is was submitted:

“Hayden J, in Redbridge, at [43], puts it too high when, in purported reliance on the dicta of Thorpe LJ in Al Habtoor v Fotheringham [2001] EWCA Civ 1 he observes that the inherent jurisdiction as a whole should be used with “extreme circumspection”, for, as the actual citation in Redbridge at [41] shows, Thorpe LJ was using that expression more particularly to describe the use of the inherent jurisdiction, based on nationality, in relation to children present in another jurisdiction. But, as appears from the authority cited with approval by the House of Lords in J v C, [1970] AC 668, particularly at 695, it is long established that courts must act cautiously in exercising the inherent jurisdiction.”

I was referred to the decision of the Court of Appeal for Ontario, Bhajan v Bhajan et al [2010] ONCA 714, in which Weiler J said:

“The parens patriae jurisdiction must be exercised in a principled manner; it should not be exercised when other effective alternative remedies exist.”

I was taken to the cases of Re Z (A Minor) (Identification: Restrictions on publication) [1997] Fam 1 and Re R (Wardship: Restrictions on Publication) [1994] Fam 254, in which Ward LJ made very similar observations.

In that context the children’s guardian poses two questions, namely:

“1.

Do they [the sexual risk orders] provide an effective alternative remedy to the making of a non-subject child CSE injunction of the kind made in Riaz?

2.

Has Parliament effectively entrusted the protection of children outside family proceedings from CSE (in terms of the seeking of appropriate relief from the courts) to the police and National Crime Agency and (in terms of the consideration of the grant of that relief) to the magistrates’ court.”

It is submitted that if the answer to either or both of those questions is ‘yes’, then the local authority is precluded from using the inherent jurisdiction to apply for a Riaz style injunction.

I was referred to the statutory guidance on Part 2 of the Sexual Offences Act 2003. In particular to the following passages at pages 5 and 42-43, namely:

“A Sexual Risk Order (SRO) can be made by a court in respect of an individual who has done an act of a sexual nature and who, as a result, poses a risk of harm to the public in the UK or children or vulnerable adults abroad. For a SRO to be imposed, the individual does not need to have committed a relevant (or any) offence.”

“An SRO may impose any restriction the court deems necessary for the purpose of protecting the public from harm ... An SRO is available on free-standing application to a magistrates’ court by the police or National Crime Agency”.

“Where an individual has done an act of a sexual nature which suggests that they pose a risk of harm to the public in the UK or children or vulnerable adults aboard, the police or NCA may apply to the magistrates’ court for a Sexual Risk Order.”

“The term intentionally covers a broad range of behaviour. Such behaviour may, in other circumstances and contexts, have innocent intentions, it also covers acts that may not in themselves be sexual but which have a sexual motive and/or are intended to allow the perpetrator to move onto sexual abuse.”

Those specified acts that were set out with the purpose of the previous risk of sexual harm order (some of which may be criminal in their own right), which included:

engaging in sexual activity involving a child or in the presence of a child;

causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual;

giving a child anything that relates to sexual activity or containing a reference to such activity;

communicating with a child, where any part of the communication is sexual.

Acts which may be suggestive of grooming ... such as

contacting a child via social media;

spending time with children alone.

Acts which may be suggestive of exploitation, such as

inviting young people to social gathering which involve predominantly older man;

providing presents, drinks and drugs to young people;

persuading young people to do things that they are not comfortable with and which they have not expected.

Acts which can be carried out in a gang or group or individuals of similar ages, “peer on peer”.

Acts that do not involve children, but may generate a risk of harm to adults.”

The court may make an interim sexual risk order. The statutory guidance provides:

“The police may apply for an interim SRO either at the time they make the full application or where an application has been made for a SRO but it has not yet been determined. The purpose of an interim SRO is to protect the public, including children and vulnerable adults outside the UK, during any period between the making of the application for a SRO and its determination. To all intents and purposes, an interim SRO is a temporary SRO, imposing such prohibitions as the court considers appropriate. Breach of any of the prohibitions of an interim SRO without reasonable excuse is a criminal offence carrying the same maximum penalty as breach of a full SRO, and also triggers the notification requirements.”

In the premises Mr Pressdee QC and Ms Wehrle assert that:

“the SRO (as defined and explained) plainly does provide an effective alternative remedy to the making of a non-subject child CSE injunction of the kind made in Riaz – there is in truth nothing that the court ordered in that context in Riaz that could not now be validly achieved by the making of an SRO;

Parliament has effectively entrusted the protection of children outside family proceedings from CSE (in terms of the seeking of appropriate relief from the courts) to the police and the National Crime Agency and (in terms of the consideration of the grant of that relief) to the magistrates’ court, with detailed supporting statutory guidance underpinning the making, ambit, nature and effect of the sexual risk order.”

They conclude that the inherent jurisdiction cannot be exercised to make Riaz injunctions to protect non subject children.

Moreover they assert there is no lacuna in the provisions of s122A of the 2003 Act. Parliament has enacted a comprehensive statutory code to afford protection to children at risk of child sexual exploitation. Thus for the court, on the application of a local authority, to exercise its powers under the inherent jurisdiction, or under the statutory provisions of s222 of the 1972 Act together with s37 of the 1987 Act, would be ‘utterly extraordinary’. Even if theoretically the jurisdiction does exist, it would be wholly wrong for it to be utilised in the manner proposed by the local authority.

I have set out the rival submissions of the parties. For the reasons set out in paragraph 15 and 16 above, however, it would be wrong for me to express a view on the same; a fully reasoned judgment on this issue must be for another case and another day.

I am satisfied that the very real concerns of the local authority and the police in respect of SK are now much ameliorated. Such issues as remain about her conduct and behaviour and the risks to which she has exposed herself are contained and dealt with under the provisions of the supervision order made on 14 December 2015.

In the premises I am satisfied that there is no need for an injunction, in whatever terms, to be made under the inherent jurisdiction to afford her protection. Accordingly I accede to the local authority’s application for permission to withdraw its application for injunctive relief at the hearing on 20 January 2016.

The misidentification of LG as a potential perpetrator of child sexual exploitation was, to put it mildly, extremely unfortunate. I am satisfied that the same resulted from a series of unintended errors and misunderstandings, of greater importance, however, for the conduct of future cases is the Protocol agreed between the local authority and the police. It provides a clear and detailed procedure for the steps to be taken in cases of actual or suspected child sexual exploitation. The protocol is the result of careful consideration over many months, by a number of agencies, with the benefit of counsels’ advice and drafting.

I am in no doubt that the guidance and procedure set out in the Protocol will prevent or, at least, greatly reduce the risk of an alleged perpetrator of child sexual exploitation being wrongly identified. Furthermore, I am satisfied that it will help to ensure that the necessary and appropriate decisions are made by the relevant agencies whether to seek a sexual risk order or to seek an alterative common law remedy or relief.

I commend this protocol to other local authorities and police forces.

In relation to the final three paragraphs of the judgment of Hayden J in the case of Redbridge, Hayden J considered whether he should invite the respondent to offer undertakings designed to afford the protection sought by the local authority pending such time as the Magistrates’ Court having heard a SRO application (see paragraphs 50 – 51 of Redbridge). Undertakings were given by the respondent. On further reflection, however, Hayden J concluded it had been inappropriate to have invited such undertakings there being, in his judgment, no jurisdictional basis to make orders in similar terms. Thus he discharged the same. Those paragraphs may be misunderstood to read that there is a lacuna in the legislative provisions in respect of sexual risk orders, in that, there is no provision to make interim orders. As I have set out above, in paragraphs 40 and 41, it is clear that the legislative provisions, read with the guidance, make it clear that a magistrates court has the power to make an interim SRO prior to the making or not making of a final order.