England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF SA (A CHILD) (INHERENT JURISDICTION: LOCAL AUTHORITY)

		Royal Courts of Justice
		27th November 2015

MR JUSTICE BAKER:

1. This is an application by a local authority for permission to apply under inherent jurisdiction for orders in respect of a girl S, born in September 2006 and therefore now aged nine. This application comes before me sitting in the urgent applications court and I am dealing with this judgment late on Friday afternoon at 5.15pm. It is accordingly a short judgment setting out the reasons for my refusal to make the order sought by the local authority.
2. This case arises out of difficulties within the family of S, who has a number of older siblings who have been involved with social services in one way or another on a number of occasions over the years. Some of the older siblings have been the subject of public law proceedings. The local authority's case in general, with regard to this family, is that S's parents struggle, in particular, to look after older children. It is as teenagers that the older children have largely come into contact with social services through difficulties that are said to have occurred within the home.
3. Recent events, which culminated in these proceedings, stem, in particular, from an allegation made by S's older brother R, who is now aged 13. He has alleged that he has been assaulted by his father. I say at once that his father, who appears in person before me today, strongly denies that allegation and asserts that R has now retracted it. In any event, on learning of this allegation his school reported the matter to the authorities and R was made the subject of a police protection order last week. The local authority in due course initiated proceedings under the Children Act, beginning with an application for an emergency protection order in respect of both R and S, which was granted by District Judge Mason on 19th November. It then emerged that S and her mother had travelled to Saint Kitts. It is said by the father that they have gone to that island for a Christmas holiday and will be due back in seven weeks' time on, or around, 13th January.
4. Learning of that development the local authority applied out of hours over last weekend to Mostyn J for a location order and a collection order in respect of S on 20th November. That application was refused. The learned judge observed that, given that the child is now in Saint Kitts, that there is in force an EPO and a recovery order, and that the police had issued assistance due to the court alert, there was nothing that justified further orders being made that night by the out of hours judge. He added that, if it was thought that further High Court orders were required, then an application could be made to the urgent applications judge on the following Monday morning.
5. That application was renewed before me on Tuesday sitting as the urgent applications judge. On that occasion the application was made by the local authority without notice to the other parties for a location order. On that occasion I ordered that the father should attend before me on Thursday and give all information within his knowledge, possession or control concerning the whereabouts of the mother and S.
6. The following day the application for an interim care order came back before the district judge in the family court. The father attended the application and gave information concerning the whereabouts of the mother and S to the district judge. The court decided to adjourn the hearing of the application for an interim care order in respect of R so that the father could obtain legal representation. That application is now listed before another district judge next Thursday, 3rd December.
7. As far as the application with regard to S is concerned, the district judge decided to adjourn that application to be considered by this court the following day on 26th November. Thus the matter came before me late yesterday afternoon on an application, first of all, for an interim care order and secondly, for the orders of inherent jurisdiction. In view of the late hour I adjourned the application until today when unfortunately again it has come on last in a busy urgent applications list.
8. The application which the local authority pursued before me is for an order under inherent jurisdiction for the return of S to this jurisdiction. They do not invite the court to make an interim care order with regard to S. Their case, so far as S is concerned, is as set out above, namely the difficulties the parents have when caring for children relates primarily to older teenage children. Thus it is their proposal that there should be an interim care order with regard to R, but only an interim supervision order with regard to S.
9. The father strongly opposes all orders and before me read out a lengthy statement setting out a history of grievances and fully developed legal arguments as to why the court should refuse any orders in this case. The guardian, through her solicitor, does not invite the court to make an interim care order again in respect of S against the wishes of the local authority, whilst pointing out that the local authority has, at some point in these proceedings during the phase of the emergency protection order, had parental responsibility for both children.
10. Section100 of the Children Act reads as follows:

"Restrictions on use of wardship jurisdiction.

(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied that—

(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5) This subsection applies to any order—

(a) made otherwise than in the exercise of the court's inherent jurisdiction; and

(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."

11. In the case of Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449 Bodey J considered an application by a local authority, pursuant to s.100, for leave to seek an order under inherent jurisdiction for the return of a child who is the subject of an interim care order to this jurisdiction and who had been take to Gambia. The learned judge granted the local authority leave to invoke the jurisdiction. In that case the local authority had parental responsibility for the child by reason of the interim order. Bodey J observed that the effect of an order under inherent jurisdiction for the return of the child to this country would not be placing the child within the care of the local authority, thereby falling foul of s.100(2)(a), but rather would be "to supplement the current interim care order and to make it efficacious".
12. In that case, of course, the local authority had parental responsibility under an interim care order. In contrast, in the current case the local authority does not have parental responsibility, nor does it seek an interim care order in respect of S for the reasons spelt out above. The question arises, therefore, as to whether a local authority can request the High Court, under its inherent jurisdiction, to order the return of a child when it does not have, nor seek, parental responsibility, but merely seeks the return of the child from this jurisdiction for the purposes of pursuing the proceedings.
13. On behalf of the guardian, Mr. Lock suggests that it would be open to the local authority to seek to invoke the jurisdiction of the High Court, assuming it is granted leave to do so, under s.100 (3) for these reasons: first, he submits that it could be argued that there is reasonable cause to believe that if inherent jurisdiction is not exercised in respect of the child she is likely to suffer significant harm; further, that the result which the local authority wishes to achieve could not be achieved other than through inherent jurisdiction of the court. In other words, there is no other order, suggests Mr. Lock, which the local authority could apply for under the Children Act which would enable it to achieve its objective.
14. Here he suggests the child would be at risk of significant harm if not returned, because it could be argued that she would not have the benefit of the support that would be provided under the interim supervision order. On the other hand, it seems to me that in the circumstances of this case it would be open to the local authority to apply for an interim care order, thereby apply parental responsibility and not remove the child from the care of the parents. In other words, it is a care order with the children remaining at home. To that Mr. Lock responds that that would only be achieved if the Placement of Children with Parents Regulations were satisfied.
15. Be that as it may, in any event, in the absence of any evidence as to the situation in Saint Kitts, it seems to me to be impossible for the local authority to satisfy me that the test set out in s.100(4)(b) is satisfied, even if Mr. Lock's subtle legal argument is correct. The mother has, on the evidence before me, taken the child to Saint Kitts for a limited period, a holiday over Christmas, where she is staying with her extended family. Given the local authority's overall case that it is only in respect of older children that significant concerns arise so as to require the removal of the children from the care of the parents, it is impossible, in my judgment, for the local authority to satisfy me that S is at risk of significant harm at Saint Kitts at present.
16. I have considered whether it would be appropriate under inherent jurisdiction for this court to order the return of the child of its own motion on the grounds that she is subject to care proceedings, and it is in the interest of her welfare to be returned to this country so that these proceedings can be pursued. I am not satisfied that the circumstances exist which would justify such a course where the local authority is not seeking an order which would give it parental responsibility. Even if the power does exist for the court to make such an order, I am not persuaded that such a power should be exercised on the facts of this case at this stage. Accordingly, the application by the local authority is refused.
17. In my view, the proceedings in respect of the children should proceed together. Subject to any further argument I propose to transfer the application under s.31 in respect of S back to the district judge so that he or she can determine that application alongside the application in respect of R next week. It may be, in due course, that the circumstances will change and the local authority decides to seek a care order in respect of S. In those circumstances it may be appropriate, if she is not returned to this country, that the application for leave to invoke inherent jurisdiction should be renewed, but at this stage the application is refused.
18. In saying that I do not wish to criticise the local authority for the course it has taken in this difficult case.
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