Over the last month Mr Justice Keehan has made a series of injunctions at the behest of Birmingham City Council designed to protect a vulnerable child in care from being groomed. It seems that the Orders are of such breadth that they are believed to have entered uncharted territory but there are questions whether there is any authority for this development.
Much attention has been given to a series of hearings in October and November during which the press have having been permitted to name six of the men (in the teeth of opposition from West Midlands Police) subject of these injunctions. However, no Judgment has yet been placed in the public domain. On that basis, there appears no choice but to try and piece together what has occurred from the media coverage.
At the heart of the case is a vulnerable 17 year old in the care of Birmingham City Council who is said to have been the subject of inappropriate attention by a number of men. In those circumstances to obtain an undesirable association injunction using the inherent jurisdiction is not uncommon.
However, the Judge described the litigation as “new and strikingly novel”. Press reports would suggest that the Judge also made orders which barred the men from “contacting, approaching or following the vulnerable teenager and from approaching ”any female under 18”, with whom they are not personally associated, in public places – long term.”
Half the men were the subject of final orders and the rest interim orders. The media made reference to the Judge being scheduled to hear evidence in a number of the cases. Two of the men would appear to have secured the services of a junior barrister. Birmingham conceded that they could not secure convictions using the criminal standard of proof and therefore sought to prove their case on the civil standard (i.e. balance of probabilities).
Joshua Rozenberg has already opined that Birmingham City Council’s decision to obtain injunctions barring 10 men from approaching young girls is innovative but hardly new. He reported that the Council relied on the doctrine of parens patriae and made reference to wardship. However, he added that this case is thought to be the first time that a local authority has taken civil action in this way to protect girls under the age of 18 from being approached by men with whom they were not personally associated. He stressed that one of the advantages of this approach is that injunction proceedings can be brought on behalf of the child without the child giving evidence and in circumstances in which she may not even perceive herself as being a victim.
The spectre of Rotherham and the attendant toxic press coverage has cast its shadow over all Local Authorities who are under pressure to take action to safeguard children. It is understandable why any Local Authority would want to see whether, in combination with the Police, they could disrupt gangs and do all they can to protect children. In support of this approach they would be able to rely on various historical statements about the breadth of the inherent jurisdiction.
However, the problem is not the ability of the Court to protect individual children, rather it is the suggestion that the Court has the power to make injunctions against named men from approaching ”any female under 18”, with whom they are not personally associated, in public places.
It is to be expected that any Judgment, when published, will seek to answer a number of potential problems
What precedent can the Court rely upon to show that the jurisdiction of the Court extends beyond protecting named children and that would allow a Court to make injunctions against men to prevent them from approaching any female under 18? Almost all of the hitherto reported cases concern Wardship- and hence the Court is only concerned with the welfare of the particular Ward concerned. If the parens patriae jurisdiction is used then the Courts habitually act to protect named children. Is it possible to build on a case concerning the welfare of one child to make an injunction protecting all the female children of the Country?
What is striking about the approach of Keehan J is that he would appear to have made injunctions which could otherwise only normally be made by way of Orders under the Sexual Offences Act 2003. The first of these is a Sexual Offences Prevention Order (SOPO) which requires a Court to find that a person has been convicted of a sexual offence and the person’s behaviour is such that there is reasonable cause to believe that it is necessary to make such an order. The second is a Risk of Sexual Harm Order (ROSHO) which would allow the Court to make an order if necessary if it finds that a person has done at least two particular sexual acts involving a child.
If reports of the Birmingham case are correct, Parliament must have acted in ignorance when they passed the Sex Offenders Act 2003 (and its predecessor, the Crime and Disorder Act 1998) as the power to make equivalent injunctions were already part of the inherent jurisdiction- without the necessity for a person to have been convicted of any sexual offence or proving two or more qualifying acts.
The case law which has developed concerning these civil orders (e.g. R (on the application of Cleveland Police) v Haggas  EWHC 3231;  1 WLR 2512 has emphasised that whilst these are civil proceedings, because of the seriousness of the matters to be proved and the implications of the resulting Orders, the criminal standard of proof or something virtually indistinguishable from it should be used (the extent to which this is compatible with the decision of the Supreme Court in Re B  UKSC 17 that there is only one civil standard of proof is unclear). Additionally, the Court of Appeal in R v Smith  EWCA 1772 cautioned about the need for Orders to be precise, proportionate and not oppressive. It noted that that most offences relating to children are committed only when the child is under the age of 16 (save where an individual stands in a position of trust), restrictions should relate to those under 16 and not under 18.
SOPOs are obtained against those who are already sex offenders and ROSHOs against those where the Court has found at least two earlier matters proved. Reports of the Birmingham cases would suggest that the inherent jurisdiction would allow the Court to make such Orders without the necessity for those antecedent conditions to be met.
The advantage of a SOPO or SOSHO is that there are now well established principles and procedures – including the necessity for the service of Civil Evidence Act Notices where appropriate and the prior service of a properly drafted proposed minute of the injunction. It is unclear whether the same restrictions would apply using the inherent jurisdiction.
As would be anticipated in a blog such as this, human rights considerations apply. There can be little doubt that the injunctions that are talked about would represent a major interference with private life (Article 8). One could imagine circumstances in which the same could be justified but the Birmingham case raises questions as to whether the injunctions are proportionate and – more importantly – in accordance with the law. At the very least, the legal foundation of such injunctions is obscure and calls into question whether it meets the requirements for legal certainty provided for in Article 7. If it turns out that these injunctions do not have a proper legal basis they may end up bringing the use of the inherent jurisdiction into disrepute.
Andrew Pack (AKA Suesspiciousminds and the Family Law Commentator of the year) has alerted me to the Anti-Social Behaviour, Crime and Policing Act 2014 (another situation in which Parliament appears to have acted in ignorance of the option under the inherent jurisdiction) which will (when the relevant sections come into force) create Sexual harm prevention orders and sexual risk orders. It would really assist the Police and Local Authorities if there could be clarity before these provisions become law.
It is to be hoped that the Judgment, if and when made public, will answer these questions.
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