Neutral Citation no. [2001] NIFam 9
Ref:     
GILE3403

 
Judgment: approved by the Court for handing down
Delivered:
24.04.2001
(subject to editorial corrections)

 

                                                                

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
FAMILY DIVISION
 
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RE:  D (A CHILD) 
(CARE ORDER, SECURE ACCOMMODATION ORDER, 
INJUNCTIVE RELIEF)
 
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GILLEN J
 
            The applicant in this case is the North & West Belfast Health & Social Services Trust (hereinafter called “the Trust”).  The respondent is [RMcG] (hereinafter referred to in this anonymised judgment as “RMcG”.  The Trust seeks the leave of the court to apply for the exercise of the court’s inherent jurisdiction pursuant to Article 173 of the Children (NI) Order 1995 (hereinafter referred to as Article 173) to issue an injunction preventing RMcG from contacting or associating or communicating with the child, D, until further order.  
            I have already given two judgments in connection with this child.  First, in Re: D (A Child) (Article 53(2) Order) (unreported February 2001) (“the first hearing”).  I refused an application by the Trust for an order prohibiting contact between D and RMcG pursuant to Article 53(2) of the Children (Northern Ireland) Order 1995 (“the 1995 Order”).  I refused that application because I had concluded that Article 53(2) was not meant to be used in the prohibitory fashion as contended by the Trust.
            A second judgment in the case of this child was given in Re: D (A Child) (Secure Accommodation Order) (unreported 22 February 2001) (“the second hearing”).  On that occasion I acceded to an application by the Trust that a secure accommodation order pursuant to Article 44 of the 1995 Order should be made in the case of this child, the order to expire within 2 months from the date of the order.  
            In both of those judgments, I referred to a number of background matters which do not appear to be in issue in this application and accordingly are not expressly challenged by the respondent.  They are set out in extenso at pages 1, 2 and 3 of my judgment in Re:  D (A Child) (Article 53(2) Order).  In essence it has been established that this child has been considered by child psychiatry since about 1997 in order to deal with his aggressive behaviour within his own home and schools, and with concerns relevant to abuse of solvents and his alleged involvement in criminal activity.  On 30 May 2000 the court had granted an interim care order in respect of D in response to concerns that he was absconding from his placement at Glenmona Resource Centre, was engaging in suspected substance abuse and was associating with persons in the community who were inimical to an appropriate lifestyle for him.  The evidence before the court was that during the time the boy was regularly absenting himself from Glenmona, he had been allegedly seen on several occasions in the company of RMcG, a female aged 37 years of age.  The boys date of birth is 29 December 1984.  Evidence had been given before me in this and the previous hearings of a significant level of association between RMcG and D during his absences.  RMcG leads a very transient lifestyle and had a number of recent changes of address.  She has a significant criminal record and Social Services did not regard her as a person who could provide appropriate care, protection or guidance for D.  Evidence was adduced that the boy resided with RMcG during his unauthorised periods of absence from the placement, that she had permitted him to engage in unauthorised driving of motor vehicles and in short it was felt that in the absence of any appropriate adult exercising care and control over him, the risks related to his association with RMcG and the lifestyle that she exposed him to constituted a grave risk to his moral well-being as well as creating a danger for him suffering significant harm.  
            I concluded in the first hearing:
“In short on the basis of the evidence before me, I consider that factually it is inappropriate that this boy should continue to have contact with RMcG in the circumstances.  She is currently facing criminal charges and one of the terms of her bail is that she should not make contact with D.”
 
            Notwithstanding the fact that she was on bail, evidence had been given before me that subsequently she had attempted to make contact with him in the precincts of the High Court by touching his hand.  
            On 23 November 2000, D was admitted to secure accommodation, Shamrock House, on a emergency 72 hour basis.  An interim secure accommodation order was granted by the Belfast Family Proceedings Court on 24 November 2000.  A further interim secure accommodation order was made by the High Court on 1 December 2000.  On 14 December 2000 a secure accommodation order (of 3 months’ duration) was granted by this court in respect of D.  As indicated, I made an order on 22 February 2001 pursuant to Article 44 of the Children Order (Northern Ireland) 1995 for a further secure accommodation order for a duration of 2 months.  I was satisfied that the appropriate criteria under Article 44 had been satisfied.  These were first that he had a history of absconding, secondly that he was likely to abscond from any other description of accommodation and thirdly that if he absconded he was likely to suffer significant harm.  At page 16 of the judgment in the second hearing I said:
“The third criteria to be assessed is whether or not if he absconds he is likely to suffer significant harm.  This was not really an issue in the case.  It is quite clear that if he does abscond his past history of involvement in criminal activity and, notwithstanding the strictures upon her, the danger of his meeting up with RMcG, represent the likelihood of him suffering significant harm.”
 
            On 28 February 2001 notwithstanding the order I had made, D absconded from Shamrock Unit at Rathgael and remains missing to this date.  I now understand that he is no longer at large.  Subsequently the matter again appeared before me when the Trust sought and obtained from the court a recovery order in respect of D, pursuant to Article 69 of the 1995 Order.  Judy Ferguson, senior social worker employed by the defendant, in an affidavit dated 12 March 2001, the contents of which are unchallenged by the respondent, states:
“On 28 February 2001 Mrs RMcG discharged herself from Lagan Valley Hospital against medical advice.  I understand she had been previously admitted to the hospital following a self-harm incident. On 1 March 2001 the social worker with responsibility for RMcG’s children was asked to contact RMcG.  The social worker was unable to make telephone contact either at RMcG’s home address or on RMcG’s mobile telephone.  On Thursday 1 March 2001 I called at RMcG’s home at 26 Rockland Street Belfast, at approximately 7.30pm with the RUC.  A light was on but no-one came to the door.  A neighbour advised that RMcG was away in a car. “
 
            Judy Ferguson continues at paragraph 4 of her affidavit as follows:
“On the evening of Friday 2 March 2001 at approximately 9.30pm I called with the RUC at RMcG’s address.  She was not there.  The premises were searched under the authority of a recovery order and there was no sign of D.  The only person present in the premises was the young woman who had attended the High Court hearing on 26 January 2001 with RMcG.  I again called to RMcG’s house on the morning of Monday 5 March 2001 at approximately 8.15am with the RUC.  RMcG was not present nor was there any sign of D.  The young woman who had been present on the previous occasion was there.  She told the police that RMcG left the house on the Sunday and had not returned home.  She did not know where RMcG was.”
 
The affidavit goes on the relate that D is still missing, there are no family members or friends that the Trust is aware of that he could stay with and that the most likely person for D to try to contact in view of the past history is RMcG.  That is the conclusion with which I agree and I consider that unless steps are taken to prevent this woman contacting or associating or communicating with D there is a grave risk of significant harm being caused to this child notwithstanding his current recovery.  I note that counsel on behalf of the respondent responsibly and candidly did not contend that there was not a risk of grave harm attaching to this situation.
The Inherent Jurisdiction of the Court
            Mr Lowry, who appears on behalf of the Trust, submits that I should grant the leave of the court for the Trust to apply for an injunction pursuant to the inherent jurisdiction under Article 173 of the 1995 Order or alternatively deem it that no such leave is required on one of two grounds:
1.         Article 173 of the 1995 Order reads as follows:
“173.-(1)         The court shall not exercise its 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 board or health and social services trust;
 
(b)       so as to require a child to be accommodated by or on behalf of a board or health and social services trust;
 
(c)        so as to make a child who is subject of a care order a ward of court; or
 
(d)       for the purpose of conferring on any board or health and social services trust power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
 
(2)        No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by an authority unless the authority has obtained the leave of the court.  
 
(3)        The court may only grant leave if it is satisfied that –
 
(a)        the result which the authority wishes to achieve could not be achieved through the making of any order of a kind to which paragraph (4) 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.  
 
(4)        This paragraph applies to any order –
 
(a)        made otherwise than in the exercise of the court’s inherent jurisdiction; and
 
(b)       which the authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).
 
(5)        In this Article `the court’ means the High Court.”
 
            It is Mr Lowry’s submission that this is a classic case where such leave should be granted under Article 173 for the following reasons:
(a)        The injunction against this woman cannot be achieved through the making of any order of a kind to which paragraph (4) applies.
(b)       In view of the past behaviour of RMcG there is reason to believe that if the court’s inherent jurisdiction is unexerciseable in respect of the child he is likely to suffer significant harm.
(c)        Since the Trust has parental responsibility it is clearly entitled to apply and has an interest in such an application.
2.         Alternatively, Mr Lowry relies on Section 91 of the Judicature (Northern Ireland) Act 1978 (hereinafter called “Section 91”) which reads:
“91-(1)            The High Court and, in matters within its jurisdiction, the County Court may at any stage of any proceedings –
 
(a)        order a sale of any property;
 
(b)       grant a mandatory or other injunction; or
 
(c)        appoint a receiver,
 
in any case where it appears to the court to be just or convenient to do so for the purpose of any proceedings before it and, if the case is one of urgency, the court may grant such an injunction before the commencement of the proceedings.
 
(2)        Any order, injunction or a point made under sub-section (1) may be made either unconditionally or on such terms and conditions as the court thinks just (including, where an injunction is granted before the commencement of the proceedings, a condition requiring proceedings to be commenced.”
 
            In passing I should indicate that the Supreme Court Act 1981 Section 37 is couched in the following terms:
“37-(1)            The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.
 
(2)        Any such order may be made either unconditionally or on such terms and conditions as the court thinks just. …”
 
            In terms Mr Lowry submits that he will be relying upon Section 91 of the 1978 Act to obtain an injunction against RMcG or alternatively, if there is doubt about his ability to rely on that, then he seeks leave under Article 173 of the 1995 Order.
            He relied on a number of authorities and they included:
(a)        Re:  P (Care Orders:  Injunctive Relief) [2000] 2 FLR 385.
(b)       C v K (Inherent Powers:  Exclusion Order) [1996] 2 FLR 506FD.
(c)        Family Court Practice 1997 Edition, page 582.
(d)       Hershman McFarlane, section C at paragraphs 1043 and 1286.
(e)        Re:  S (Minors) (Inherent Jurisdiction:  Ouster) [1994] 1 FLR 623.
            Mr Schofield, who appears on behalf of the respondent furnished the court with a careful skeleton argument which he augmented with firm submissions that emphasised the following points:-
(1)        Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“the Convention”) and the Human Rights Act 1998 should govern the rights of the respondent in these proceedings and the court should not countenance any matter incompatible with those rights.
(2)        If there is no reasonable prospect of success, then leave should not be granted under Article 173(2).
(3)        Relying on the authority of C v K (supra) and in particular on the authority of Richards v Richards [1984] 1 AC 174 referred to therein, the court should conclude that Article 173(2) and Section 91 are both a species of the inherent jurisdiction and not separate and distinct as envisaged by Charles J in Re:  P.  He submits therefore that any application under Section 91 referable to children requires leave in the same way as leave is required under Article 173(2).
(4)        Article 173 is a last resort and there are sufficient orders in force at the moment to preclude the necessity for such draconian steps as are now being urged on this court by the applicant Trust.
(5)        It is his submission that Article 53 of the 1995 Order deals comprehensively with children who are in care and in effect ousts the inherent jurisdiction of the court in this area.  It is his submission that Parliament has set out in Article 53 of the 1995 Order the confines of the court’s jurisdiction with reference to contact when a child is in care and the court cannot side-step this by means of the inherent jurisdiction.
(6)        Mr Schofield concludes that to make an order in the terms now sought by the Trust would be a breach of the respondent’s right to private life under Article 8 of the Convention.
(7)        Finally, he submits that the order sought is contrary to the principles set out in Silver v UK (1983) 3 EHRR Vol.5 page 347 in that the remedies sought and the law governing the matter are not sufficiently precise or adequately accessible to the respondent.
 
Conclusions
1.         It is my view that the judgment and reasoning of Charles J in Re:  P (supra) sets out the appropriate principles that govern this case and I respectfully adopt his reasoning contained therein.  At page 386e he states:
“My view, based solely on the reading of the statute, was that the powers conferred by Section 37 of the Supreme Court Act 1981 and all divisions of the High Court are not part of the High Court’s inherent jurisdiction with respect to children referred to in Section 100 of the Children Act 1989 (which is couched in similar terms to Article 173 of the 1995 Order).  It seems to me that this is the case as a matter of language and analysis.  Section 37 of the Supreme Court Act 1981 gives a statutory base to powers that the High Court can exercise in support of rights and confers general powers which one would expect to co-exist with rights, interest and duties conferred or imposed by the Children Act 1989.  In contrast, the inherent jurisdiction of the High Court with respect to children is a particular aspect of the inherent jurisdiction which covers, or potentially covers, the same ground as that now dealt with by the statutory regime contained in the Children Act 1989 and, so far as Section 100 is concerned, particularly those parts of the Children Act 1989 which affect local authorities.  It is therefore natural to expect some filter, or other provisions, relating to the exercise of that inherent jurisdiction in the Children Act 1989.  In my judgment, simply by reference to the Children Act 1989, the powers conferred by Section 37 of the Supreme Court Act 1981 are available to support the rights, conferred by Section 33 of the Children Act 1989 and, in particular, Section 33(3) after a care order has been made and these rights (and duties) have been conferred or imposed by the Children Act 1989 on a local authority.”
 
            It is my view that Section 91 of the Judicature (Northern Ireland) Act 1978 performs precisely the same function as Section 37 of the Supreme Court Act 1981 in the context of this case.  I am satisfied that where a care order is made in favour of a Trust, the authority has parental responsibility for the child and therefore jurisdiction under Section 91 may be invoked to protect their rights to exercise that parental responsibility appropriately and, in particular, to protect the child.
            I am reinforced in this view by the extract from page 582 of the Family Court Practice 1997 where the author states at page 583:
“It would seem therefore that in an appropriate case, where a care order or interim care order is made in favour of a local authority, application may be made for injunctive relief by the local authority against a parent or a third party pursuant to the powers conferred by the Supreme Court Act 1981 Section 37 … instead of invoking the court’s inherent jurisdiction, provided that it can be shown that, if the jurisdiction is not exercised, the child is likely to suffer significant harm.  It is also submitted that C v K provides a remedy where injunctive relief under any other provision proves impossible, provided it is necessary to protect a child from significant harm, and it is needed to enable the party with parental responsibility to exercise that legal right appropriately and effectively.”
 
            I conclude, therefore, that it is not necessary for the Trust in this case to have leave to apply for the injunctive relief sought.  If I am wrong and it is necessary for it to have such leave I grant it on the basis that:
(a)        If the Trust is not given such leave there are reasonable grounds to believe that if the inherent jurisdiction is not exercised this child will suffer significant harm because of the real possibility of this woman contacting him or communicating or associating with him as she has done in the past and thereby visiting significant harm upon him.  She is a source of chronic instability in his life.
(b)       the provisions of Article 173 are satisfied.
2.         Accordingly I reject the argument of Mr Schoffield that Re:  P is incorrectly decided and whilst it does not impose any binding authority upon me, I consider that it is highly persuasive.  It seems to me that C v K, as Charles J indicates at page 387 of his judgment, provides clear support for the propositions put forward in Re: P and I adopt the passages in C v K which are adverted to by Charles J at page 387.
3.         I reject the proposition that leave is required to invoke Section 91 of the Judicature (Northern Ireland) Act 1978 in the case of children.  I find absolutely nothing in the wording of that Section or in the object of concern of the legislation that could possibly lead to that conclusion either by way of a wide or purposive construction that special or additional consideration be given to one class of case.  It would involve a striking asymmetry between cases involving children and all other cases where Section 91 is involved .  Had I come to such conclusion, I would have granted leave for an application to be made on foot of Section 91.
4.         I am not persuaded that injunctive relief is unnecessary given the presence of other possible reliefs to address this mischief.  In particular;
(a)        the recovery order which I made in this matter does not afford the overall level of protection which this child requires and in particular would not be sufficiently effective to prevent association and contact;
(b)       the bail conditions to which this woman is subject may at any time be varied or come to an end leaving this child exposed to the danger;
(c)        I am not satisfied that an injunctive order could be available to the Trust suing on behalf of the minor in the High Court under Article 5 of the Protection from Harassment Order (Northern Ireland) 1997 in that it is highly questionable whether this child is a victim given that he may well be seeking this woman out.  I do not believe that the 1997 Order envisaged circumstances of this kind as being appropriate for such an order being made.  It has been separately said in cases about children that their ingenuity in finding unexpected ways of doing mischief to themselves should never be underestimated.  Something more than the 1997 Order is needed to protect this child.
5.         I reject the suggestion that Article 53 of the 1995 Order precludes the exercise of the inherent jurisdiction.  I find nothing in the order that is to this effect and I find nothing in the case of Re:  W (Section 34(2) Orders) [2000] 1 FLR which leads to this conclusion.  I do not believe that Parliament ever intended that once a Trust was vested with parental authority, that it was then precluded from taking the kind of injunctive relief that this current situation prima facie demands.  Otherwise, children would not be protected in what might amount to extremely dangerous circumstances.
6.         I am not persuaded that an injunction, if granted in the terms sought would amount to an inappropriate limit on the respondent’s right to private life under Article 8 of the European Convention.  Article 8 does not confer upon a litigant an unfettered choice of behaviour.  Given her behaviour in the past, and the danger to which she exposes this child, I am satisfied that there are grounds for arguing that an injunction in the terms now sought is in accordance with the law and is absolutely necessary and proportionate in order to achieve a legitimate aim, namely, the protection of the health and morals of this child.  In short this instance may well be paradigm of the very type of case for which injunctive relief is appropriate.
7.         Finally, this case is wholly distinguishable from the situation set out in Silver v UK where quite clearly there were unpublished orders and instructions to officials which were not accessible to the ordinary citizen and where standing orders and certain instructions had been issued to governors but not to prisoners.  I see no analogy whatsoever with the present case where the inherent jurisdiction, whether under Section 91 or Article 173 is there for all to find and be advised on.
            In the circumstances, therefore, I consider that the Trust is entitled to make an application for injunctive relief under Section 91 of the Act without the necessity for this court to grant leave.  Alternatively, if I am wrong as to the application of Section 91 of the Act, I grant the leave sought under Article 173 on the basis that there is reasonable cause to believe that without the injunction the child will suffer significant harm despite the present orders being in place and the result which the authority wishes to achieve could not be achieved through the making of any order of a kind to which paragraph (4) applies.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
FAMILY DIVISION
 
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RE:  D (A CHILD) 
(CARE ORDER, SECURE ACCOMMODATION ORDER, 
INJUNCTIVE RELIEF)
 
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JUDGMENT

OF

GILLEN J

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