Nottingham County Council v P [1993] EWCA Civ 35

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION COURT

[1993] EWCA Civ 35

Case No Case No.:

Venue Royal Courts of Justice, Strand, London WC2

Between

Nottingham County Council v P

Before

The President

Lord Justice Hirst

Lord Justice Waite

MISS S EDWARDS (instructed by Nottingham County Council)

appeared on behalf of the Applicant MISS P SCOTLAND QC (instructed by Messrs Sheltons of Nottingham)

appeared on behalf of the First Respondent MISS J PARKER (instructed by Messrs Curtis & Parkinson of

Nottingham) appeared on behalf of the Second Respondent MR R HAYWARD SMITH QC (instructed by the Official Solicitor)

appeared on behalf of the Minors

Date 6 April 1993

[1]THE PRESIDENT: This is the Judgment of the Court. The Court has before it a series of appeals from a Judgment delivered by Mr Justice Ward on the 27th October 1992. The Judge then refused an application by the Nottinghamshire County Council for a Prohibited Steps Order made pursuant to Section 8 of The children Act 1989. By its application the Nottinghamshire County Council stated that it wished the Court to order that the father should not reside in the same household as his daughters and should not have any contact with them unless they themselves wished to have contact with him and that any such contact should be supervised by the Social Services Department, such contact to be negotiated between the mother, father and the daughters with a condition that the mother should not knowingly place the daughters in a position where they come into contact or reside with the father. It stated that it was making the application:

"In order to stop/prevent the sexual abuse of the daughters by the father and its emotionally and physically damaging effects."

Further that its plans for the children were "That the eldest child should reside with her mother and should receive appropriate help and resources from the Social Services Department and other appropriate agencies regarding sexual abuse. That the child should only have contact with the father at her request and under the supervision of the Social Services Department." The respondents to the application were stated to be the mother and the father. Having refused that application by the Local Authority the learned judge proceeded to use what he described as "an almost forgotten application" by the father for a Residence Order as a basis for making a Residence Order in favour of the mother. The mother had not sought such an order but the Judge considered that he had a discretion to make the order by reason of the provisions of section 10 of The Children Act 1989. He imposed conditions and made directions to provide that the father should not have contact with the children save such contact as should be supervised by the Social Services Department and he further ordered that the father should vacate the property and should not enter or attempt to enter the property thereafter. The Local Authority now appeals against the Judge's refusal to make a Prohibited Steps

[2]The respondents to the application were stated to be the mother and the father. Having refused that application by the Local Authority the learned judge proceeded to use what he described as "an almost forgotten application" by the father for a Residence Order as a basis for making a Residence Order in favour of the mother. The mother had not sought such an order but the Judge considered that he had a discretion to make the order by reason of the provisions of section 10 of The Children Act 1989. He imposed conditions and made directions to provide that the father should not have contact with the children save such contact as should be supervised by the Social Services Department and he further ordered that the father should vacate the property and should not enter or attempt to enter the property thereafter. The Local Authority now appeals against the Judge's refusal to make a Prohibited Steps

[3]The appeal of the Local Authority raises important questions of law and policy concerning the power of a Local Authority to seek to make use of the private law provisions contained in Part II of The Children Act 1989 instead of proceeding by way of the public law provisions contained in Part IV of The Children Act.

[4]The facts which led to the initiation of proceedings by the Local Authority are set out in the Judgment of Mr Justice Ward which was delivered in open Court. The Judge's findings of fact are not challenged in any way in these appeals. On the 8th May 1992 after a hearing lasting several days the learned Judge found that the father had persistently sexually abused the eldest of his three daughters by having sexual intercourse with her and committing buggery upon her. He found that the two younger daughters whose ages brought them within the jurisdiction of the Court were seriously at risk of abuse by their father. The father in fact already had a conviction for indecent assault upon a girl who was not a member of the family. The Judge found that the mother was weak and had no capacity to protect the children and that she was probably totally under the control of her husband. He further found that if the father were to be excluded from the home there was a real risk that the girls would run away to him. On the 8th May the Judge also said about the father:

"I have no doubt whatever that Mr P is in need of help. He is a very disturbed and disturbing man. He bristles with aggression. Though he may be all bluster, he in nonetheless a man with a temper, who portrays himself as frightening. He has a frightening effect upon those he deals with."

[5]He said further:

"The all pervasive atmosphere of sex in this house is frightening. Given the harm already suffered, the risk of further harm that this man will not stop with M (the eldest girl), but will lay his hands upon the other two is a real risk which gives me cause for grave concern. As to the capacity of each of the parents to meet the girls' needs: their parents have demonstrated themselves quite unable to do so."

[6]At that hearing in May 1992 the Judge considered the range of powers available to the Court under the Children Act 1989 and complained that the form of the Local Authority's application did not give the Court power to make a Supervision Order. He referred to the fact that the Circuit Judge to whom the case had initially been remitted had asked the Local Authority to consider this and had then referred the matter to the Authority under the provisions of section 37 of The Children Act. The Judge said in his judgment on the 8th May:

"I made it perfectly plain when speaking to the manager of Social Services that I felt it (the Supervision Order) would give me teeth and powers that I did not have without their application but the Local Authority refused to give me the opportunity to exercise any of the powers which are ancillary to a Supervision Order. I respect their point of view that they do not seek to remove K and E from their home not least because they could not control them if they were to take them into care. I wholly understand that dilemma. But why the Local Authority have concluded that a Supervision Order would not give the Court any useful powers that it would not otherwise have, I simply do not know."

[7]At that stage the learned Judge adjourned the case for a period whilst the father went for assessment to The Gracewell Clinic, a well-recognised institution which specialises in the treatment of sexual offenders. When the matter came back before him on the 26th October 1992 the Judge said:

"On the 8th May of this year, after a hearing lasting several days, I adjourned the question as to whether or not a Prohibited Steps Order should be made. I required further enquiries to be undertaken by all parties. The Judgment I gave then was one which I contemplated should be released for publication, and which I now do release for publication, and a transcript of it is available."

[8]He briefly recited the facts and issues which were then before him. He recalled that he had found that there was a grave risk of harm to the youngest two girls who were still under the age of 17 and then said at page 3 of the transcript of his Judgment:

"What made Judgment in the case difficult at that stage was the evidence which satisfied me that there was a real risk that the girls would run away to the father, even if he were excluded from the home. Faced with the difficult balancing exercise between protecting the children and keeping the family together in order to heal them, I concluded that there was a sufficiently real chance the family might be ready to respond to treatment, and so I adjourned the matter for that to be investigated. I should add that I was critical of the Local Authority for their failure to accept His Honour Judge Heald's invitation, and my invitation, to invoke the powers they have under Part IV of The Children Act 1989 to apply for a Care Order or a Supervision Order."

[9]On the 26th October the learned Judge had before him a report from The Gracewell Clinic and in addition he heard the oral evidence of a Mrs Still from the Clinic. The conclusions of the Gracewell Clinic were:

"Father has worked hard in the Gracewell Assessment Programme. He has begun to share openly and own up to the fact that he is a sex offender with a repetitive of offending that has been active for many years. He has identified two kinds of cycle, one relating to children 'close to home' and one to children whom he knows less well but whom he can target through the parents. His cycle pattern is that of an anger rapist."

[10]The conclusion was that the Clinic believed that he had worked well at Gracewell and that he had the capacity to respond to treatment and they were prepared to offer him a place subject to bed availability for a period of 12 months. However, the County Council was not able to fund such a placement and so this was not an option available to the Judge, for he had not power to compel the Local Authority to provide such a programme of treatment for the father.

The Judge continued:

"I am invited by the Local Authority to exercise my power only to make a Prohibited Steps Order. With shame I confess it partly my failure that no thought was given in May as to whether or not the Local Authority could apply for such an Order. Perhaps the lectures on The Children Act I have given and attended have so whet my appetite for the delights of the flexible range of practical remedies in the section 8 'menu', that I totally forgot to ask myself whether it was right for me even to accept this invitation to dine at the private law table. Having given thought to this last night I asked Counsel to address me for the first time on the Local Authority's power to apply for a Prohibited Steps Order which as drafted by Counsel for the Local Authority would be an order that the father do leave the household at whatever its address may be, that he do not return to it, and that he has no contact with the children except as may be approved and supervised by the Local Authority. On looking more closely into the application, I have observed that what was sought when the matter came before the Justices was leave to apply for the Prohibited Steps Order, that leave being granted by a single Justice. The applciation was for the Court to order that the father should not reside in the same household as the daughters, should not have any contact with them unless they themselves wished to have contact with him, and any such contact be supervised by the Social Services Department, such contact to be negotiated between the parents and the children. A condition was to be that mother should not knowingly place the girls in a position where they came into contact with or resided with the father. The Local Authority's plans set out in the box provided by the forms are - That the girls should reside with their mother and that the mother should receive appropriate help and resources from the Social Services Department and other appropriate agencies regarding sexual abuse. The children should only have contact with father at their request and under supervision. That is the way the case was put. The proceedings had in fact begun with the Local Authority seeking Emergency Protection Orders, and obtaining them, and therefore satisfying the test of significant harm which is common to those applications as to care and supervision applications. What has troubled me overnight is the effect of section 9 sub-section 2 and sub-section 5 of the Act. They provide: S.9(2): "

No application may be made by a Local Authority for a Residence Order or Contact Order and no Court shall make such an Order in favour of a Local Authority;

[12]S.9(5): No Court should excercise its powers to make a specific issue Order or Prohibited Steps Order -(a) with a view to achieving a result which could not be achieved by making a Residence or Contact Order." One is thus required to analyse precisely what a Prohibited Steps Order is.

[13]The learned Judge said that he was also required to construe 'Residence Orders' and 'Contact Orders'. He referred to the definitions of Residence Order and Contact Order in Section 8 of The Children Act 1989 and continued: "If a Prohibited Steps Order is sought it seems to me that the Court is bound to enquire for the purpose of Section 9(5) into the purpose for which that Order is sought. Is it sought to be applied for and made with a view to achieving a result which could be achieved by making a Residence or Contact Order? Counsel has manfully and capably had to answer that under the difficulty of my confronting him with my anxieties when he arrived here ready to do no more than note my Judgment, and I am sympathetic to his predicament.

[14]I would have wished myself to have further time and further consideration before resolving these questions, but since K made an attempt on her life over the weekend I do not have time to delay.

[15]In my Judgment an application which seeks to regulate who shall live in the household and who therefore shall be charged with the responsibility of making arrangements for the day-to-day care of the child is something which can be achieved by a Residence Order. I would on an application for a Residence Order settle the arrangements to be made as to the person with whom the child is to live. I would be stipulating that the child is to live with the mother and that the child is not to live with the father. It is even more starkly apparent when I consider the relief Counsel seeks in respect of regulating contact, namely that there should be no contact except such as the Local Authority approve. That in my Judgment is a matter which is capable of being achieved by the making of a Contact Order, and I do not accept his submission that where no contact is being allowed that is not a Contact Order. If a mother successfully sought to prevent any contact being had with father, the Order would be that no shall be had. That must in my Judgment be a Contact Order. That is the effect of what the Local Authority seek to achieve."

[16]Later in his Judgment at page 19 of the transcript at letter F the Judge said: "Section 9(2) clearly prevents the Court from permitting a Local Authority to seek Residence Orders or Contact Orders. Section 9(5) must be read to prevent their achieving that result through the back door. Parliament has, in my Judgment, intended that restriction upon the Local Authority's right of access to the Court because Parliament has expressly provided a door which can be opened only by the Local Authority, namely the door given by Section 31. I have railed against the inability of the Court in this case to do what I would wish to do because the Local Authority have refused, notwithstanding the Section 37 reference, to apply under Section 31. In my judgment Parliament by this Act clearly determined that the sanctity of the family should be preserved and protected. It is an expression of the underlying purpose of this Act that organs of the State, be they the Local Authority or the Courts, shall not interfere with the independence and integrity of the family save in limited circumstances. Those limited circumstances which justify the intervention by the Local Authority are the circumstances where there is or there is a fear of significant harm being occasioned to the children. The whole tenor of Parts IV and V of the Children Act is that the Local Authority may not intervene in family life unless and until that threshold has been crossed. It is only when significant harm is established that the Local Authority can seek to interfere with where the child is to live and with whom the child is to have contact. The means by which they can seek the right so to interfere is by means of the Public Law remedies of Care and Supervision Orders provided by Part IV. The Private Law remedies of Residence and Contact Orders are not for them. In this case they have steadfastly refused every blandishment His Honour Judge Heald and I could conjure up under Section 37 to persuade them to seek their proper remedy. There clearly is another need of access to the Courts to be available to the Local Authority to regulate other possible issues that may arise in connection with a child, such as medical issues. Clearly a medical issue could be brought either under the guise of Prohibited Steps or, more likely, under the guise of Specific Issues. The Local Authority are free to apply in that respect but in my judgment I have no power to accede to their application to make the Prohibited Steps Order they seek here, and I decline to do so. This Judgment will have wide ranging effects, and I am conscious of them, and would have wished more time fully to have considered them. There are wide implications to this refusal by me to countenance this approach of the Local Authority. It is a fact, I am informed by Mr Elvidge (Counsel for the Local Authority) and a fact I know from my position as the Liaison Judge on the Midland and Oxford Circuit, that many Local Authorities up and down the country are seeking to use the powers under Section 8 rather than invoking care and supervision jurisdiction. Their attempts are laudable, for it is clear to me at least that a climate of co-operation and of partnership is more easily able to exist if the menu of practical solutions is offered to the unhappy parents rather than that the emotive matters of care and supervision are imposed upon them.

[17]I regret having to close the door on an avenue that may be productive of good case management, but I fear I am driven into that corner."

[18]A little later in his Judgment

the Judge said:

"There is moreover another matter of concern. Applications for leave to proceed under Section 8 will not be Specified Proceedings as defined in Section 41 of the Act. Accordingly, there is no duty on the Court to appoint a Guardian ad litem. There is of course a duty for the Court to appoint a Guardian in proceedings for a Care Order or the Supervision Order. There would be, I am informed by Mrs Doughty (Counsel for the Guardian) and accept, no ability for a Guardian from the Panel to assist the Court otherwise than as an expert after persuading the Legal Aid Board that the Guardian's fees are a legitimate disbursement. The Legal Aid Board, I am told are most unhappy thus to regard the intervention by the Guardian ad litem, consequently, the Court will be denied the assistance of Guardians in a wide variety of cases which, as here, do have elements of children being at risk of substantial harm. For the childrens voice not to be heard is to deny the Court hearing the most important voice in the case. That inclines me again to saying that Care and Supervision is the right way to proceed."

[19]Mr Karsten QC for the Local Authority submitted that the primary purpose of Section 9 sub-section 5 when read with Section 9 sub-section 2 is to prevent a child from being placed in care on 'welfare' grounds without the 'significant harm' test of Section 31 having to be satisfied. He complained that the effect of the learned Judge's construction of Section 9(5)(a) is to drive Local Authorities to apply for a Care Order under Section 31 and that would oblige them to make what might well be in many cases an excessive intervention in the life of a family. He sought to equate a Prohibited Steps Order with an Ouster Order. He claimed that an application for a Prohibited Steps Order gives much clearer notice to the recipient that it is sought to oust him than does an application for a Residence Order. He sought support for his submission from pre-Children Act procedures. He claimed that previously a Local Authority could always apply for an injunction for the protection of children through the mechanism of applying for leave to intervene in subsisting matrimonial, custodial or wardship proceedings or indeed of instituting wardship proceedings itself. He said that a Court had power to make an Ouster Order on such an application in the exercise of such jurisdiction. In this case he said the Local Authority had considered the whole position of this family and took the view that what was required was that the father should not live in the house with the children. Mother was weak and unable to prevent him from doing so and that accordingly a Prohibited Steps Order would provide the necessary sanction.

[20]Counsel for the mother, the father and the Guardian ad litem all supported the learned Judge's ruling on the application of the Local Authority for a Prohibited Steps Order. They all submitted that the application was misconceived and that leave to make the application should not have been granted particularly by means of an ex parte application to a single justice of a Family Proceedings Court. Miss Judith Parker QC for the mother submitted that the structure and scheme of the Children Act 1989 made it clear that applications made by Local Authorities were governed principally by Part IV of the Act under which Local Authorities might apply for Care or Supervision Orders which gave them statutory responsibilities. Part II of the Act principally concerned private law remedies and the remedies provided by Section 8 were essentially private law remedies. Furthermore Local Authorities were specifically prohibited from applying for Residence and Contact Orders although they were not debarred with leave from seeking Specific Issue and Prohibited Steps Orders. However, these were subject to the restrictions contained in Section 9(5) of the Act.

[21]Miss Parker supported the Judge's decision that the application made in this instance by the Local Authority fell foul of the restrictions contained in Section 9(5). It was an application which patently sought to determine the residence of the children and the degreee of contact which the children might have with the father. Miss Parker also submitted that in any event a Prohibited Steps Order could not in fact operate as an exclusion order or much less an order requiring a father to leave his home at the instance of a Local Authority. She drew to the attention of the Court the report in HANSARD of the 27 th October 1989 with regard to a proposal to introduce a clause into the Children Bill during its passage through the House of Commons. Hansard records that a member sought to introduce a new clause 34 headed 'Removal of Adults' and the clause as drafted provided;(1) Where the Court has made;- (a) an Emergency Protection Order; or (b) an Interim Care Order; and it is satisfied that the child's welfare would be satisfactorily safeguarded or promoted if a person who is resident in the child's household were removed from that household the Court may in addition - (i) make an order (exclusion order) requiring that person to vacate that household; or (ii) accept an undertaking from that person that he shall vacate the household

(2) For the purposes of the Section the term exclusion order shall include the term undertaking

(3) Where an exclusion order is made under this Section the child shall not be removed from the household."

[22]This Clause was not approved and therefore was not incorporated in the Act which received the Royal Assent. It is suggested by Miss Parker that the Local Authority's application erroneously assumes that such a power nevertheless exists.

[23]Miss Parker also pointed out that when a Care Order is made under Section 31 a Local Authority assumes parental responsibility and inter alia has power to place a child with its parent or parents under the provisions of Section 23(5) of the Children Act 1989 and The Placement of Children with Parents Etc. Regulations 1991. In such circumstances the child need not be taken from her home and the Local Authority is afforded wide powers to supervise the placement. Furthermore Section 34 of the Act gives wide powers with regard to contact.

[24]Section 31 gives power to the Court to make a Supervision Order as an alternative to making a Care Order. Schedule 3 of the Children Act 1989 gives detailed powers to the supervisor to impose obligations and to give directions. In this case it appears that from the time when the application first came before a Circuit Judge all the parties other than the Local Authority were willing to submit to the making of a supervision order under Section 31. The Court has been told by Counsel appearing for the father that he was prepared to consent to a number of requirements being included in a supervision Order.

[25]Section 9(5) provides:

"No Court shall exercise its powers to make a Specific Issue Order or Prohibited Steps Order - (a) With a view to achieving a result which could be achieved by making a Residence or Contact Order; or (b) In any way which is denied to the High Court (by Section 100(2)) in the exercise of its inherent jurisdiction with respect to children."

[26]In the view of this Court the application for a Prohibited Steps Order by this Local Authority was in reality being made with a view to achieving a result which could be achieved by making a Residence or Contact Order. Section 9(2) specifically provides; "No application may be made by a Local Authority for a Residence Order or Contact Order and no Court shall make such an Order in favour of a Local Authority."

[27]The Court is satisfied that the Local Authority was indeed seeking to enter by the "back door" as it were. It agrees with Mr Justice Ward that he had no power to make a Prohibited Steps Order in this case.

[28]Submissions were made to the Court to the effect that a Contact Order in any event necessarily implied a positive order and that an order which merely provided for "no contact" could not be construed as a Contact Order. There are certain passages in editorial comment which seem to support that view. We do not share it. We agree with the learned Judge that the sensible and appropriate construction of the term Contact Order includes a situation where a Court is required to consider whether any contact should be provided for. An order that there shall be 'no contact' falls within the general concept of contact and common sense requires that it should be considered to fall within the definition of 'Contact Order' in Section 8(1). We agree with the reasoning of Mr Justice Ward and would therefore dismiss the appeal of the Local Authority against his refusal of its application for a Prohibited Steps Order.

[29]A wider question arises as to policy. We consider that this Court should make it clear that the route chosen by the Local Authority in this case was wholly inappropriate. In cases where children are found to be at risk of suffering significant harm within the meaning of Section 31 of the Children Act 1989 a clear duty arises on the part of Local Authorities to take steps to protect them. In such circumstances a Local Authority is required to assume responsibility and to intervene in the family arrangements in order to protect the child. Part IV specifically provides them with wide powers and a wide discretion. As already pointed out the Act envisages that Local Authorities may place children with their parents even though they may have a Care Order under Section 31. A Supervision Order may be viewed as being less draconian but it gives the Local Authority a wide discretion as to how to deal with children and with the family. A Prohibited Steps Order would not afford the Local Authority any authority as to how it might deal with the children. There may be situations, for example where a child is accommodated by a Local Authority, where it would be appropriate to seek a Prohibited Steps Order for some particular purpose. However, it could not in any circumstances be regarded as providing a substitute for an Order under part IV of the Children Act. Furthermore it is very doubtful indeed whether a Prohibited Steps Order could in any circumstances be used to 'oust' a father from a matrimonial home. Although Counsel had prepared detailed submissions upon this aspect of the matter it has not been necessary to consider the point in order to resolve this appeal. It is a most regrettable feature of this case that the Local Authority having initially intervened under Part V of the Children Act in order to obtain an Emergency Protection Order did not then proceed to seek orders under Section 31 in Part IV of the Act. This is even more regrettable after Judge Heald had directed the Local Authority to consider the position pursuant to a direction under Section 37 of the Act. At page 234 of the trial bundle there appears what is headed: The Report of Nottinghamshire County Council Re: Section 37 Direction Nottingham County Council and

[30]P and P.

[31]It then states: "At a hearing before His Honour Judge Heald on the 2nd March 1992 a Section 37 direction was issued to the Local Authority. The Local Authority has since reconsidered the case and the merits of making an application under Section 31. The Local Authority does not feel it appropriate to make an application for a Care or Supervision Order as it does not believe those orders would be effective in the protection of these children. The Local Authority has decided to continue with the application for a Prohibited Steps Order in relation to the father of K and E and would intend to offer appropriate support, services, and assistance, in the light of that order being made or any other such order being made. The Local Authority will review this case following the court proceedings on the 9th and 10th April 1992.

[32]Signed Peter McEntee Area Director North Area. Social Services Director."

[33]That clearly is not a satisfactory answer to a Section 37 direction and we agree with the learned Judge that he was left in an intolerable situation. This Local Authority persistently and obstinately refused to undertake what was the appropriate course of action and it thereby deprived the Judge of the ability to make a constructive Order. We wish to add that it was wholly inappropriate in the first place for the Local Authority to apply for leave to issue an application for a Prohibited Steps Order ex parte before a single Justice of a Family Proceedings Court. If the matter had been referred at the earliest opportunity to the County Court it is likely that the application would have been refused. In our view this should have happened. In future any such application if made to a Family Proceedings Court should be transferred to the County Court. Furthermore no such application should be dealt with 'ex parte'. An immediate and obvious deficiency in attempting to initiate such a procedure is that there is no power under the private law provisions of the Children Act for the court to appoint a guardian ad litem to represent the interests of the children. It is to be hoped that a serious lesson will have been learned as a result of these proceedings and that Local Authorities will recognise that where children are believed to be at risk of suffering significant harm, their appropriate avenue is via Part IV of the Children Act which is specifically designed to accommodate public law applications.

[34]Having refused the application for a Prohibited Steps Order the learned Judge was left with what he described as a 'dilemma'. He said:

"What on earth do I do? I cannot act upon the Local Authority's application."

[35]He then referred to the fact that technically there was still before the Court an application by the father for a Residence Order. He said at page 22 of the transcript of this judgment:

"Fortunately I have the residual power under Section 10 sub-section 1 in Family Proceedings in which a question arises with respect to the welfare of the child to make a Section 8 Order if the Court considers that the Order should be made, even though no application has been made before it, and I would have to exercise my powers accordingly. Whether or not it is an abuse of the process of the Court for the Local Authority to apply knowing they cannot get the relief and then forcing the Judge to act under Section 10(1) is another matter. I need not castigate this Local Authority in that way, for I have the father's application for a Residence Order in any event, and I can adjudicate upon that as well as exercise the wide power of Section 10(1)."

[36]At page 23 letter E of his Judgment he continued; "For me to do nothing is an abdication of my responsibility and my duty to act, and I can only do the best in pretty poor circumstances. In my Judgment the risk of abuse to K and to L is, in the light of the report from Gracewell, so real and so great that it would be irresponsible for me to ignore it without the assurance that father would voluntarily remove himself to the Gracewell. I must therefore proceed upon the basis that the help the family need and, as I find, the help which they wish to have, is now denied to them by the decision of the Local Authority. If I cannot protect these children in the future by arranging a course of treatment which will cure their father from his abusing tendencies then I am left with no option but for their protection to ensure that they live in their mother's home, that there be a Residence Order to the mother, a condition of which shall be that the father shall not reside in that home with her. I appreciate that my Judgment on the meaning of Section 9(5)(a) may have given an impression that no Prohibited Steps Order should be made where a Contact Order is made, but I seek to achieve a result which cannot be entirely met by the making of a Residence Order alone, and I wish some added teeth to be given to it, and I shall direct therefore that the arrangements to be made as to the person which whom the child is to live shall be as follows. The Children K and E, shall live with their mother at the address which is their home, which will be specified in the Order. It is a condition that father shall not enter nor attempt to enter that property. That Order must of course be served upon him, and it shall be endorsed, if it is necessary for it to be endorsed, with a penal notice that its breach shall be treated as a contempt rendering him liable to be sent to prison for his breach of it. I shall direct that he is to have no contact whatsoever with either K or E save as may be affected under the supervision of the applicant Local Authority. I make that Order under loud protest. I make that Order loudly protesting that I regard it as most unfortunate that this Court should be required in open Court to complain that a lack of resources apparently prevents a Local Authority protecting the children in its area who are in need."

[37]The Order which was drawn up and which is to be found at page 1 of the Core Bundle before the Court recites; "On hearing Counsel for the applicants, Counsel for the First Respondent (the mother) Counsel for the Second respondent (the father) and the solicitor for the Guardian ad litem upon the applicants application for a Prohibited Steps Order and upon the Second Respondent's application for a Residence Order. 2 The Court orders that the children E and K shall live with the First Respondent on condition that the Second Respondent shall not live with the family at the property situate at ......... or any other address that the family may reside. The Second Respondent to leave the property by noon on Friday 30th October 1992 3 This Order has not been made ex parte. 4 The Court also orders that: i The Second Respondent shall not have contact with the said children save such contact that shall be supervised by the Applicant's Social Services Department until further Order; ii There be a transcript of the Judgment herein at public expense to be placed on the Court file and copies provided to the parties; iii There be leave to disclose the transcript of the Judgment herein to the Criminal Compensation Board in respect of the child M; iv The matter to be reserved to Mr Justice Ward; v There be no Order as to costs save the costs of the First and Second Respondents and costs of the Guardian ad litem be taxed in accordance with the provisions of The Legal Aid Act 1988."

[38]At page 3 of the bundle there appears an Order made "further to the Order made of even date."

[39]It is stated by paragraph 2 to be addressed to the Second Respondent who is named and then appear these words:

"if you do not obey this Order you will be guilty of contempt of Court and you may be sent to prison."

[40]On the 27th October 1992 the Court considered an application for an injunction. 3 The Court Orders that the Second Defendant i Shall vacate the property situate at ..... by noon on Friday 30th October 1992; ii Shall not enter or attempt to enter the said property thereafter; iii Shall not have contact with the said children save for contact that shall be supervised by the applicant's Social Services Department until further Order. iv This Order shall remain in force until further Order of the Court."

[41]The Judge stated that he made those Orders under protest. The mother, the father and the children by their Guardian ad litem all appeal against the making of those orders. Although the mother desires that the children shall reside with her she did not seek a Residence Order and is not disposed to accept the conditions which the learned Judge purported to impose as an adjunct to the Residence Order. Counsel for each of these parties submits that the Order was in terms a 'device'. The father's application had lain dormant, apparently forgotten as the learned Judge observed by everybody during the proceedings in May and again in October. The father had not pursued his application for a Residence order at any stage of the proceedings before the learned Judge. The Judge purported to act in reliance upon the powers contained in Section 10(1) of the Act and of the power to attach conditions to a Residence Order under Section 11(7). However these are also provisions falling within the private law section of Part II of the Act. The complaint is made by Counsel for the mother and adopted by Counsel for each of the other parties that the learned Judge was in effect seeking to make an Order in favour of the Local Authority for although it was not stated to be directed to the Local Authority it expressly sought to place upon it the duty of regulating and supervising contact. Furthermore, the Order as drawn up assumed the nature of an injunction directed to the father to which was attached a penal notice. The question immediately arises as to who might seek to enforce the conditions which the Judge attached to the Order. It was not on the face of it an Order made in favour of the Local Authority which in any event was prohibited by Section 9(2) from making an application for a Residence Order or Contact Order. Furthermore the Court was precluded by the same Section from making such an Order in favour of a Local Authority. The Local Authority accordingly acquired no powers or responsibility as a result. The mother was not a willing party to the grant of an injunction against the father whom she did not wish to exclude from the matrimonial home.

[42]Miss Parker furthermore raised the question as to what might happen if the mother were to apply to discharge the Orders with the consent of the children. These considerations demonstrate the artificiality of the course which was adopted by the Judge. I have no doubt that the Judge would not disagree that it was an artificial course which he adopted. He said in terms that he was driven to take some step in order to protect the children.

[43]In our Judgment these Orders cannot stand. Even if the Judge had a theoretical power to assume authority by reason of Section 10 of the Children Act the Orders were plainly not appropriate even in the unhappy circumstances of this case. In the result the appeals against these Orders must be allowed.

[44]In the result there are now no Orders in force which are capable of regulating and safeguarding the position of these children. In point of fact the elder has now reached the age of 16 but the younger is now still only 13 years of age. The situation remains that they are at risk and the Local Authority is under a statutory obligation to take steps to protect them and to seek to ensure their welfare. The Court has been told that as a result of action taken by the Regional Health Authority prompted by the Judge, the father did in fact go to The Gracewell Clinic following the proceedings before Mr Justice Ward.

[45]However the Court has also now been told by his Counsel that he has since left the clinic. The Court has not been told the circumstances under which that occurred. Since the fact of the risk of significant harm to the children has been established and not contradicted there remains upon the Local Authority the clear duty to take steps to safeguard the welfare of these children. It should not shrink from taking steps under part IV of the Act. It appears from submissions made by all Counsel in this Court that the mother, the father and the children by their Guardian ad Litem would not resist the making of a Supervision Order in favour of the Local Authority pursuant to Section 31 of the Act. That at least would afford a basis for the Local Authority to take some constructive steps in order to protect these children.

[46]This Court is deeply concerned at the absence of any power to direct this Authority to take steps to protect the children. In the former wardship jurisdiction it might well have been able to do so. The operation of the Children Act is entirely dependent upon the full co-operation of all those involved. This includes the Courts, the Local Authorities and the Social Workers and all who have to deal with children. Unfortunately as appears from this case if a Local Authority doggedly resists taking the steps which are appropriate to the case of children at risk of suffering significant harm it appears that the Court is powerless. The Authority may perhaps lay itself open to an application for Judicial Review but in a case such as this the question arises at whose instance? The position is one which it is to be hoped will not recur and that lessons will be learnt from this unhappy catalogue of errors.

[47]For the reasons set out in this judgment, the Court dismisses the appeal of the Local Authority and allows the appeals of the other appellants.

[48]MR HAYWARD SMITH: My Lord, I ask on behalf of the guardian and the legal aid fund that your Lordships say that the Local Authority bear the funds of this appeal.

THE PRESIDENT: You are legally aided.

[50]MR HAYWARD SMITH: Yes.

THE PRESIDENT: So are your colleagues.

[52]MR HAYWARD SMITH: My Lord, yes.

THE PRESIDENT: First of all, I think you each have your legal aid taxation.

[54]MR HAYWARD SMITH: My Lord, I am obliged. So far as the costs are concerned, my Lord, if the Local Authority had adopted the approach urged upon them by His Honour Judge Heald and by Mr Justice Ward, this appeal would be unlikely ever to have come before your Lordships.

[55]My Lords,

[55]we say that the stance taken by the Local Authority has incurred a great deal of costs and it would be wrong for the fund to have to bear those costs. Accordingly, we ask for costs (I now speak on behalf of the Guardian) from the Local Authority.

THE PRESIDENT: Yes.

[57]MISS PARKER: I make a similar application on behalf of the mother.

[58]MISS SCOTLAND: We make a similar application on behalf of the father. We think this was a wholly unnecessary appeal, unmeritorious and, therefore, there can be no reasonable basis for it to be pursued and costs should follow.

[59]Your Lordship should know that the legal aid fund is sorely pressed at the moment.

THE PRESIDENT: We have heard something about that.

[61]MISS SCOTLAND: We think that, of all cases, this case would merit a proper order in their favour.

[62]MISS EDWARDS: I have three very brief submissions. It is appropriate that each party should bear their own costs. The action taken by the Local Authority in this case was bona fide; they were attempting to achieve what the Local Authority thought was best for the children. Your Lordships will note that they were attempting to find a solution in a case where there was no ideal solution, and the Local Authority believed the route they were taking would involve the minimum disruption to the children and as little intervention as possible in the rights of life in this family.

[63]I accept that I am bound by your Lordships' decision that the route chosen was inappropriate, but nevertheless I would submit that the fact that the Local Authority formed a view which has not been adopted, and which Lordships have found the law would not allow is not a reason, in my submission, that the Local Authority should be penalised.

THE PRESIDENT: Why should not the costs follow the event?

[65]MISS EDWARDS: My Lord, I would say that in a case such as this, a children's case, it is unusual to award costs in children's cases. There has been dicta in a number of cases, notably in Gojkovic by Lord Justice Butler-Sloss to that effect. It is unusual to award costs in children's cases.

[66]THE PRESIDENT: The problem here is that it is clear from the very outset, apparently, both the mother, the father and the guardian were saying that they would agree to the making of a supervision order.

[67]MISS EDWARDS: My Lord, I accept that.

[68]THE PRESIDENT: Indeed, His Honour Judge Heald was urging that course and, of course, so did Mr Justice Ward. The matter has been pursued in this court notwithstanding all that has been said and, possibly, after time for reflection.

[69]MISS EDWARDS: My Lord, though of course I accept that, as indeed your Lordships have stated in your Lordship's Judgment, the appeal of the Local Authority has raised important questions of law and policy; the interaction of the public and private law under the Children Act has, until this case, in my submission, been very much unchartered waters.

[70]I would submit that there are important public issues which needed to be aired. This Local Authority needed clarification not only for this case but for other cases, and indeed there has been considerable interest in the case from other local authorities. In my submission, for those reasons, it would not be right for the council tax payers of Nottingham to bear the entire cost. We would say that we would know for next time that, at the time this case was heard, it was unchartered waters and that the view the Local Authority held was honest and bona fide; the Local Authority were trying to do what they thought was best for the children.

[71]My Lord, I do say that all three parties are legally aided. If the Local Authority had been successful, the Local Authority would not have been able to recover costs from them and, in those circumstances, I would submit that the order would be no order in this case.

THE PRESIDENT: Do you wish to reply?

[73]MR HAYWARD-SMITH: If the test as to whether an order for costs should be made was whether one or other party was acting bona fide, my Lord, it may be that orders for costs may not be made.

THE PRESIDENT: Yes.

[75]MR HAYWARD-SMITH: One other point, my Lord, is that on 6th March the solicitor acting for the Guardian wrote to the Local Authority asking what stance they intended to take in response to the indication given by His Honour Judge Heald, which your Lordship knows about. My Lord, as I understand it, there was no reply by the Local Authority to that letter. ( A short while later )

[76]THE PRESIDENT: We take into account the fact that all the parties are appellants in fact in this case and that some of the time was taken up, of course, with the orders which the learned judge made in respect of a Residence Order. The proper result is that the Local Authority should pay one half of the costs of each of the other parties.

[77]MISS EDWARDS: My Lord, I have one other application to make. I would apply for leave to appeal to the House of Lords on the basis that this case has raised important questions of law and policy.

THE PRESIDENT: Leave is refused; your application is refused.

Order

The mother, the father and the children by their Guardian ad litem all appeal against the orders which the learned Judge made for residence with the mother and in particular the restrictions with regard to contact. The appeal of the Local Authority raises important questions of law and policy concerning the power of a Local Authority to seek to make use of the private law provisions contained in Part II of The Children Act 1989 instead of proceeding by way of the public law provisions contained in Part IV of The Children Act. The facts which led to the initiation of proceedings by the Local Authority are set out in the Judgment of Mr Justice Ward which was delivered in open Court. The Judge's findings of fact are not challenged in any way in these appeals. On the 8th May 1992 after a hearing lasting several days the learned Judge found that the father had persistently sexually abused the eldest of his three daughters by having sexual intercourse with her and committing buggery upon her. He found that the two younger daughters whose ages brought them within the jurisdiction of the Court were seriously at risk of abuse by their father. The father in fact already had a conviction for indecent assault upon a girl who was not a member of the family. The Judge found that the mother was weak and had no capacity to protect the children and that she was probably totally under the control of her husband. He further found that if the father were to be excluded from the home there was a real risk that the girls would run away to him. On the 8th May the Judge also said about the father: "I have no doubt whatever that Mr P is in need of help. He is a very disturbed and disturbing man. He bristles with aggression. Though he may be all bluster, he in nonetheless a man with a temper, who portrays himself as frightening. He has a frightening effect upon those he deals with." He said further: "The all pervasive atmosphere of sex in this house is frightening. Given the harm already suffered, the risk of further harm that this man will not stop with M (the eldest girl), but will lay his hands upon the other two is a real risk which gives me cause for grave concern. As to the capacity of each of the parents to meet the girls' needs: their parents have demonstrated themselves quite unable to do so." At that hearing in May 1992 the Judge considered the range of powers available to the Court under the Children Act 1989 and complained that the form of the Local Authority's application did not give the Court power to make a Supervision Order. He referred to the fact that the Circuit Judge to whom the case had initially been remitted had asked the Local Authority to consider this and had then referred the matter to the Authority under the provisions of section 37 of The Children Act. The Judge said in his judgment on the 8th May: "I made it perfectly plain when speaking to the manager of Social Services that I felt it (the Supervision Order) would give me teeth and powers that I did not have without their application but the Local Authority refused to give me the opportunity to exercise any of the powers which are ancillary to a Supervision Order. I respect their point of view that they do not seek to remove K and E from their home not least because they could not control them if they were to take them into care. I wholly understand that dilemma. But why the Local Authority have concluded that a Supervision Order would not give the Court any useful powers that it would not otherwise have, I simply do not know." At that stage the learned Judge adjourned the case for a period whilst the father went for assessment to The Gracewell Clinic, a well-recognised institution which specialises in the treatment of sexual offenders. When the matter came back before him on the 26th October 1992 the Judge said: "On the 8th May of this year, after a hearing lasting several days, I adjourned the question as to whether or not a Prohibited Steps Order should be made. I required further enquiries to be undertaken by all parties. The Judgment I gave then was one which I contemplated should be released for publication, and which I now do release for publication, and a transcript of it is available." He briefly recited the facts and issues which were then before him. He recalled that he had found that there was a grave risk of harm to the youngest two girls who were still under the age of 17 and then said at page 3 of the transcript of his Judgment: "What made Judgment in the case difficult at that stage was the evidence which satisfied me that there was a real risk that the girls would run away to the father, even if he were excluded from the home. Faced with the difficult balancing exercise between protecting the children and keeping the family together in order to heal them, I concluded that there was a sufficiently real chance the family might be ready to respond to treatment, and so I adjourned the matter for that to be investigated. I should add that I was critical of the Local Authority for their failure to accept His Honour Judge Heald's invitation, and my invitation, to invoke the powers they have under Part IV of The Children Act 1989 to apply for a Care Order or a Supervision Order." On the 26th October the learned Judge had before him a report from The Gracewell Clinic and in addition he heard the oral evidence of a Mrs Still from the Clinic. The conclusions of the Gracewell Clinic were: "Father has worked hard in the Gracewell Assessment Programme. He has begun to share openly and own up to the fact that he is a sex offender with a repetitive of offending that has been active for many years. He has identified two kinds of cycle, one relating to children 'close to home' and one to children whom he knows less well but whom he can target through the parents. His cycle pattern is that of an anger rapist." The conclusion was that the Clinic believed that he had worked well at Gracewell and that he had the capacity to respond to treatment and they were prepared to offer him a place subject to bed availability for a period of 12 months. However, the County Council was not able to fund such a placement and so this was not an option available to the Judge, for he had not power to compel the Local Authority to provide such a programme of treatment for the father. The Judge continued: "I am invited by the Local Authority to exercise my power only to make a Prohibited Steps Order. With shame I confess it partly my failure that no thought was given in May as to whether or not the Local Authority could apply for such an Order. Perhaps the lectures on The Children Act I have given and attended have so whet my appetite for the delights of the flexible range of practical remedies in the section 8 'menu', that I totally forgot to ask myself whether it was right for me even to accept this invitation to dine at the private law table. Having given thought to this last night I asked Counsel to address me for the first time on the Local Authority's power to apply for a Prohibited Steps Order which as drafted by Counsel for the Local Authority would be an order that the father do leave the household at whatever its address may be, that he do not return to it, and that he has no contact with the children except as may be approved and supervised by the Local Authority. On looking more closely into the application, I have observed that what was sought when the matter came before the Justices was leave to apply for the Prohibited Steps Order, that leave being granted by a single Justice. The applciation was for the Court to order that the father should not reside in the same household as the daughters, should not have any contact with them unless they themselves wished to have contact with him, and any such contact be supervised by the Social Services Department, such contact to be negotiated between the parents and the children. A condition was to be that mother should not knowingly place the girls in a position where they came into contact with or resided with the father. The Local Authority's plans set out in the box provided by the forms are - That the girls should reside with their mother and that the mother should receive appropriate help and resources from the Social Services Department and other appropriate agencies regarding sexual abuse. The children should only have contact with father at their request and under supervision. That is the way the case was put. The proceedings had in fact begun with the Local Authority seeking Emergency Protection Orders, and obtaining them, and therefore satisfying the test of significant harm which is common to those applications as to care and supervision applications. What has troubled me overnight is the effect of section 9 sub-section 2 and sub-section 5 of the Act. They provide: S.9(2): "No application may be made by a Local Authority for a Residence Order or Contact Order and no Court shall make such an Order in favour of a Local Authority; S.9(5): No Court should excercise its powers to make a specific issue Order or Prohibited Steps Order -(a) with a view to achieving a result which could not be achieved by making a Residence or Contact Order." One is thus required to analyse precisely what a Prohibited Steps Order is. The learned Judge said that he was also required to construe 'Residence Orders' and 'Contact Orders'. He referred to the definitions of Residence Order and Contact Order in Section 8 of The Children Act 1989 and continued: "If a Prohibited Steps Order is sought it seems to me that the Court is bound to enquire for the purpose of Section 9(5) into the purpose for which that Order is sought. Is it sought to be applied for and made with a view to achieving a result which could be achieved by making a Residence or Contact Order? Counsel has manfully and capably had to answer that under the difficulty of my confronting him with my anxieties when he arrived here ready to do no more than note my Judgment, and I am sympathetic to his predicament. I would have wished myself to have further time and further consideration before resolving these questions, but since K made an attempt on her life over the weekend I do not have time to delay. In my Judgment an application which seeks to regulate who shall live in the household and who therefore shall be charged with the responsibility of making arrangements for the day-to-day care of the child is something which can be achieved by a Residence Order. I would on an application for a Residence Order settle the arrangements to be made as to the person with whom the child is to live. I would be stipulating that the child is to live with the mother and that the child is not to live with the father. It is even more starkly apparent when I consider the relief Counsel seeks in respect of regulating contact, namely that there should be no contact except such as the Local Authority approve. That in my Judgment is a matter which is capable of being achieved by the making of a Contact Order, and I do not accept his submission that where no contact is being allowed that is not a Contact Order. If a mother successfully sought to prevent any contact being had with father, the Order would be that no shall be had. That must in my Judgment be a Contact Order. That is the effect of what the Local Authority seek to achieve." Later in his Judgment at page 19 of the transcript at letter F the Judge said: "Section 9(2) clearly prevents the Court from permitting a Local Authority to seek Residence Orders or Contact Orders. Section 9(5) must be read to prevent their achieving that result through the back door. Parliament has, in my Judgment, intended that restriction upon the Local Authority's right of access to the Court because Parliament has expressly provided a door which can be opened only by the Local Authority, namely the door given by Section 31. I have railed against the inability of the Court in this case to do what I would wish to do because the Local Authority have refused, notwithstanding the Section 37 reference, to apply under Section 31. In my judgment Parliament by this Act clearly determined that the sanctity of the family should be preserved and protected. It is an expression of the underlying purpose of this Act that organs of the State, be they the Local Authority or the Courts, shall not interfere with the independence and integrity of the family save in limited circumstances. Those limited circumstances which justify the intervention by the Local Authority are the circumstances where there is or there is a fear of significant harm being occasioned to the children. The whole tenor of Parts IV and V of the Children Act is that the Local Authority may not intervene in family life unless and until that threshold has been crossed. It is only when significant harm is established that the Local Authority can seek to interfere with where the child is to live and with whom the child is to have contact. The means by which they can seek the right so to interfere is by means of the Public Law remedies of Care and Supervision Orders provided by Part IV. The Private Law remedies of Residence and Contact Orders are not for them. In this case they have steadfastly refused every blandishment His Honour Judge Heald and I could conjure up under Section 37 to persuade them to seek their proper remedy. There clearly is another need of access to the Courts to be available to the Local Authority to regulate other possible issues that may arise in connection with a child, such as medical issues. Clearly a medical issue could be brought either under the guise of Prohibited Steps or, more likely, under the guise of Specific Issues. The Local Authority are free to apply in that respect but in my judgment I have no power to accede to their application to make the Prohibited Steps Order they seek here, and I decline to do so. This Judgment will have wide ranging effects, and I am conscious of them, and would have wished more time fully to have considered them. There are wide implications to this refusal by me to countenance this approach of the Local Authority. It is a fact, I am informed by Mr Elvidge (Counsel for the Local Authority) and a fact I know from my position as the Liaison Judge on the Midland and Oxford Circuit, that many Local Authorities up and down the country are seeking to use the powers under Section 8 rather than invoking care and supervision jurisdiction. Their attempts are laudable, for it is clear to me at least that a climate of co-operation and of partnership is more easily able to exist if the menu of practical solutions is offered to the unhappy parents rather than that the emotive matters of care and supervision are imposed upon them. I regret having to close the door on an avenue that may be productive of good case management, but I fear I am driven into that corner." A little later in his Judgment the Judge said: "There is moreover another matter of concern. Applications for leave to proceed under Section 8 will not be Specified Proceedings as defined in Section 41 of the Act. Accordingly, there is no duty on the Court to appoint a Guardian ad litem. There is of course a duty for the Court to appoint a Guardian in proceedings for a Care Order or the Supervision Order. There would be, I am informed by Mrs Doughty (Counsel for the Guardian) and accept, no ability for a Guardian from the Panel to assist the Court otherwise than as an expert after persuading the Legal Aid Board that the Guardian's fees are a legitimate disbursement. The Legal Aid Board, I am told are most unhappy thus to regard the intervention by the Guardian ad litem, consequently, the Court will be denied the assistance of Guardians in a wide variety of cases which, as here, do have elements of children being at risk of substantial harm. For the childrens voice not to be heard is to deny the Court hearing the most important voice in the case. That inclines me again to saying that Care and Supervision is the right way to proceed." Mr Karsten QC for the Local Authority submitted that the primary purpose of Section 9 sub-section 5 when read with Section 9 sub-section 2 is to prevent a child from being placed in care on 'welfare' grounds without the 'significant harm' test of Section 31 having to be satisfied. He complained that the effect of the learned Judge's construction of Section 9(5)(a) is to drive Local Authorities to apply for a Care Order under Section 31 and that would oblige them to make what might well be in many cases an excessive intervention in the life of a family. He sought to equate a Prohibited Steps Order with an Ouster Order. He claimed that an application for a Prohibited Steps Order gives much clearer notice to the recipient that it is sought to oust him than does an application for a Residence Order. He sought support for his submission from pre-Children Act procedures. He claimed that previously a Local Authority could always apply for an injunction for the protection of children through the mechanism of applying for leave to intervene in subsisting matrimonial, custodial or wardship proceedings or indeed of instituting wardship proceedings itself. He said that a Court had power to make an Ouster Order on such an application in the exercise of such jurisdiction. In this case he said the Local Authority had considered the whole position of this family and took the view that what was required was that the father should not live in the house with the children. Mother was weak and unable to prevent him from doing so and that accordingly a Prohibited Steps Order would provide the necessary sanction. Counsel for the mother, the father and the Guardian ad litem all supported the learned Judge's ruling on the application of the Local Authority for a Prohibited Steps Order. They all submitted that the application was misconceived and that leave to make the application should not have been granted particularly by means of an ex parte application to a single justice of a Family Proceedings Court. Miss Judith Parker QC for the mother submitted that the structure and scheme of the Children Act 1989 made it clear that applications made by Local Authorities were governed principally by Part IV of the Act under which Local Authorities might apply for Care or Supervision Orders which gave them statutory responsibilities. Part II of the Act principally concerned private law remedies and the remedies provided by Section 8 were essentially private law remedies. Furthermore Local Authorities were specifically prohibited from applying for Residence and Contact Orders although they were not debarred with leave from seeking Specific Issue and Prohibited Steps Orders. However, these were subject to the restrictions contained in Section 9(5) of the Act. Miss Parker supported the Judge's decision that the application made in this instance by the Local Authority fell foul of the restrictions contained in Section 9(5). It was an application which patently sought to determine the residence of the children and the degreee of contact which the children might have with the father. Miss Parker also submitted that in any event a Prohibited Steps Order could not in fact operate as an exclusion order or much less an order requiring a father to leave his home at the instance of a Local Authority. She drew to the attention of the Court the report in HANSARD of the 27 th October 1989 with regard to a proposal to introduce a clause into the Children Bill during its passage through the House of Commons. Hansard records that a member sought to introduce a new clause 34 headed 'Removal of Adults' and the clause as drafted provided;(1) Where the Court has made;- (a) an Emergency Protection Order; or (b) an Interim Care Order; and it is satisfied that the child's welfare would be satisfactorily safeguarded or promoted if a person who is resident in the child's household were removed from that household the Court may in addition - (i) make an order (exclusion order) requiring that person to vacate that household; or (ii) accept an undertaking from that person that he shall vacate the household

(2) For the purposes of the Section the term exclusion order shall include the term undertaking

(3) Where an exclusion order is made under this Section the child shall not be removed from the household." This Clause was not approved and therefore was not incorporated in the Act which received the Royal Assent. It is suggested by Miss Parker that the Local Authority's application erroneously assumes that such a power nevertheless exists. Miss Parker also pointed out that when a Care Order is made under Section 31 a Local Authority assumes parental responsibility and inter alia has power to place a child with its parent or parents under the provisions of Section 23(5) of the Children Act 1989 and The Placement of Children with Parents Etc. Regulations 1991. In such circumstances the child need not be taken from her home and the Local Authority is afforded wide powers to supervise the placement. Furthermore Section 34 of the Act gives wide powers with regard to contact. Section 31 gives power to the Court to make a Supervision Order as an alternative to making a Care Order. Schedule 3 of the Children Act 1989 gives detailed powers to the supervisor to impose obligations and to give directions. In this case it appears that from the time when the application first came before a Circuit Judge all the parties other than the Local Authority were willing to submit to the making of a supervision order under Section 31. The Court has been told by Counsel appearing for the father that he was prepared to consent to a number of requirements being included in a supervision Order. Section 9(5) provides: "No Court shall exercise its powers to make a Specific Issue Order or Prohibited Steps Order - (a) With a view to achieving a result which could be achieved by making a Residence or Contact Order; or (b) In any way which is denied to the High Court (by Section 100(2)) in the exercise of its inherent jurisdiction with respect to children." In the view of this Court the application for a Prohibited Steps Order by this Local Authority was in reality being made with a view to achieving a result which could be achieved by making a Residence or Contact Order. Section 9(2) specifically provides; "No application may be made by a Local Authority for a Residence Order or Contact Order and no Court shall make such an Order in favour of a Local Authority." The Court is satisfied that the Local Authority was indeed seeking to enter by the "back door" as it were. It agrees with Mr Justice Ward that he had no power to make a Prohibited Steps Order in this case. Submissions were made to the Court to the effect that a Contact Order in any event necessarily implied a positive order and that an order which merely provided for "no contact" could not be construed as a Contact Order. There are certain passages in editorial comment which seem to support that view. We do not share it. We agree with the learned Judge that the sensible and appropriate construction of the term Contact Order includes a situation where a Court is required to consider whether any contact should be provided for. An order that there shall be 'no contact' falls within the general concept of contact and common sense requires that it should be considered to fall within the definition of 'Contact Order' in Section 8(1). We agree with the reasoning of Mr Justice Ward and would therefore dismiss the appeal of the Local Authority against his refusal of its application for a Prohibited Steps Order. A wider question arises as to policy. We consider that this Court should make it clear that the route chosen by the Local Authority in this case was wholly inappropriate. In cases where children are found to be at risk of suffering significant harm within the meaning of Section 31 of the Children Act 1989 a clear duty arises on the part of Local Authorities to take steps to protect them. In such circumstances a Local Authority is required to assume responsibility and to intervene in the family arrangements in order to protect the child. Part IV specifically provides them with wide powers and a wide discretion. As already pointed out the Act envisages that Local Authorities may place children with their parents even though they may have a Care Order under Section 31. A Supervision Order may be viewed as being less draconian but it gives the Local Authority a wide discretion as to how to deal with children and with the family. A Prohibited Steps Order would not afford the Local Authority any authority as to how it might deal with the children. There may be situations, for example where a child is accommodated by a Local Authority, where it would be appropriate to seek a Prohibited Steps Order for some particular purpose. However, it could not in any circumstances be regarded as providing a substitute for an Order under part IV of the Children Act. Furthermore it is very doubtful indeed whether a Prohibited Steps Order could in any circumstances be used to 'oust' a father from a matrimonial home. Although Counsel had prepared detailed submissions upon this aspect of the matter it has not been necessary to consider the point in order to resolve this appeal. It is a most regrettable feature of this case that the Local Authority having initially intervened under Part V of the Children Act in order to obtain an Emergency Protection Order did not then proceed to seek orders under Section 31 in Part IV of the Act. This is even more regrettable after Judge Heald had directed the Local Authority to consider the position pursuant to a direction under Section 37 of the Act. At page 234 of the trial bundle there appears what is headed: The Report of Nottinghamshire County Council Re: Section 37 Direction Nottingham County Council and P and P. It then states: "At a hearing before His Honour Judge Heald on the 2nd March 1992 a Section 37 direction was issued to the Local Authority. The Local Authority has since reconsidered the case and the merits of making an application under Section 31. The Local Authority does not feel it appropriate to make an application for a Care or Supervision Order as it does not believe those orders would be effective in the protection of these children. The Local Authority has decided to continue with the application for a Prohibited Steps Order in relation to the father of K and E and would intend to offer appropriate support, services, and assistance, in the light of that order being made or any other such order being made. The Local Authority will review this case following the court proceedings on the 9th and 10th April 1992. Signed Peter McEntee Area Director North Area. Social Services Director." That clearly is not a satisfactory answer to a Section 37 direction and we agree with the learned Judge that he was left in an intolerable situation. This Local Authority persistently and obstinately refused to undertake what was the appropriate course of action and it thereby deprived the Judge of the ability to make a constructive Order. We wish to add that it was wholly inappropriate in the first place for the Local Authority to apply for leave to issue an application for a Prohibited Steps Order ex parte before a single Justice of a Family Proceedings Court. If the matter had been referred at the earliest opportunity to the County Court it is likely that the application would have been refused. In our view this should have happened. In future any such application if made to a Family Proceedings Court should be transferred to the County Court. Furthermore no such application should be dealt with 'ex parte'. An immediate and obvious deficiency in attempting to initiate such a procedure is that there is no power under the private law provisions of the Children Act for the court to appoint a guardian ad litem to represent the interests of the children. It is to be hoped that a serious lesson will have been learned as a result of these proceedings and that Local Authorities will recognise that where children are believed to be at risk of suffering significant harm, their appropriate avenue is via Part IV of the Children Act which is specifically designed to accommodate public law applications. Having refused the application for a Prohibited Steps Order the learned Judge was left with what he described as a 'dilemma'. He said: "What on earth do I do? I cannot act upon the Local Authority's application." He then referred to the fact that technically there was still before the Court an application by the father for a Residence Order. He said at page 22 of the transcript of this judgment: "Fortunately I have the residual power under Section 10 sub-section 1 in Family Proceedings in which a question arises with respect to the welfare of the child to make a Section 8 Order if the Court considers that the Order should be made, even though no application has been made before it, and I would have to exercise my powers accordingly. Whether or not it is an abuse of the process of the Court for the Local Authority to apply knowing they cannot get the relief and then forcing the Judge to act under Section 10(1) is another matter. I need not castigate this Local Authority in that way, for I have the father's application for a Residence Order in any event, and I can adjudicate upon that as well as exercise the wide power of Section 10(1)." At page 23 letter E of his Judgment he continued; "For me to do nothing is an abdication of my responsibility and my duty to act, and I can only do the best in pretty poor circumstances. In my Judgment the risk of abuse to K and to L is, in the light of the report from Gracewell, so real and so great that it would be irresponsible for me to ignore it without the assurance that father would voluntarily remove himself to the Gracewell. I must therefore proceed upon the basis that the help the family need and, as I find, the help which they wish to have, is now denied to them by the decision of the Local Authority. If I cannot protect these children in the future by arranging a course of treatment which will cure their father from his abusing tendencies then I am left with no option but for their protection to ensure that they live in their mother's home, that there be a Residence Order to the mother, a condition of which shall be that the father shall not reside in that home with her. I appreciate that my Judgment on the meaning of Section 9(5)(a) may have given an impression that no Prohibited Steps Order should be made where a Contact Order is made, but I seek to achieve a result which cannot be entirely met by the making of a Residence Order alone, and I wish some added teeth to be given to it, and I shall direct therefore that the arrangements to be made as to the person which whom the child is to live shall be as follows. The Children K and E, shall live with their mother at the address which is their home, which will be specified in the Order. It is a condition that father shall not enter nor attempt to enter that property. That Order must of course be served upon him, and it shall be endorsed, if it is necessary for it to be endorsed, with a penal notice that its breach shall be treated as a contempt rendering him liable to be sent to prison for his breach of it. I shall direct that he is to have no contact whatsoever with either K or E save as may be affected under the supervision of the applicant Local Authority. I make that Order under loud protest. I make that Order loudly protesting that I regard it as most unfortunate that this Court should be required in open Court to complain that a lack of resources apparently prevents a Local Authority protecting the children in its area who are in need." The Order which was drawn up and which is to be found at page 1 of the Core Bundle before the Court recites; "On hearing Counsel for the applicants, Counsel for the First Respondent (the mother) Counsel for the Second respondent (the father) and the solicitor for the Guardian ad litem upon the applicants application for a Prohibited Steps Order and upon the Second Respondent's application for a Residence Order. 2 The Court orders that the children E and K shall live with the First Respondent on condition that the Second Respondent shall not live with the family at the property situate at ......... or any other address that the family may reside. The Second Respondent to leave the property by noon on Friday 30th October 1992 3 This Order has not been made ex parte. 4 The Court also orders that: i The Second Respondent shall not have contact with the said children save such contact that shall be supervised by the Applicant's Social Services Department until further Order; ii There be a transcript of the Judgment herein at public expense to be placed on the Court file and copies provided to the parties; iii There be leave to disclose the transcript of the Judgment herein to the Criminal Compensation Board in respect of the child M; iv The matter to be reserved to Mr Justice Ward; v There be no Order as to costs save the costs of the First and Second Respondents and costs of the Guardian ad litem be taxed in accordance with the provisions of The Legal Aid Act 1988." At page 3 of the bundle there appears an Order made "further to the Order made of even date." It is stated by paragraph 2 to be addressed to the Second Respondent who is named and then appear these words: "if you do not obey this Order you will be guilty of contempt of Court and you may be sent to prison." On the 27th October 1992 the Court considered an application for an injunction. 3 The Court Orders that the Second Defendant i Shall vacate the property situate at ..... by noon on Friday 30th October 1992; ii Shall not enter or attempt to enter the said property thereafter; iii Shall not have contact with the said children save for contact that shall be supervised by the applicant's Social Services Department until further Order. iv This Order shall remain in force until further Order of the Court." The Judge stated that he made those Orders under protest. The mother, the father and the children by their Guardian ad litem all appeal against the making of those orders. Although the mother desires that the children shall reside with her she did not seek a Residence Order and is not disposed to accept the conditions which the learned Judge purported to impose as an adjunct to the Residence Order. Counsel for each of these parties submits that the Order was in terms a 'device'. The father's application had lain dormant, apparently forgotten as the learned Judge observed by everybody during the proceedings in May and again in October. The father had not pursued his application for a Residence order at any stage of the proceedings before the learned Judge. The Judge purported to act in reliance upon the powers contained in Section 10(1) of the Act and of the power to attach conditions to a Residence Order under Section 11(7). However these are also provisions falling within the private law section of Part II of the Act. The complaint is made by Counsel for the mother and adopted by Counsel for each of the other parties that the learned Judge was in effect seeking to make an Order in favour of the Local Authority for although it was not stated to be directed to the Local Authority it expressly sought to place upon it the duty of regulating and supervising contact. Furthermore, the Order as drawn up assumed the nature of an injunction directed to the father to which was attached a penal notice. The question immediately arises as to who might seek to enforce the conditions which the Judge attached to the Order. It was not on the face of it an Order made in favour of the Local Authority which in any event was prohibited by Section 9(2) from making an application for a Residence Order or Contact Order. Furthermore the Court was precluded by the same Section from making such an Order in favour of a Local Authority. The Local Authority accordingly acquired no powers or responsibility as a result. The mother was not a willing party to the grant of an injunction against the father whom she did not wish to exclude from the matrimonial home. Miss Parker furthermore raised the question as to what might happen if the mother were to apply to discharge the Orders with the consent of the children. These considerations demonstrate the artificiality of the course which was adopted by the Judge. I have no doubt that the Judge would not disagree that it was an artificial course which he adopted. He said in terms that he was driven to take some step in order to protect the children. In our Judgment these Orders cannot stand. Even if the Judge had a theoretical power to assume authority by reason of Section 10 of the Children Act the Orders were plainly not appropriate even in the unhappy circumstances of this case. In the result the appeals against these Orders must be allowed. In the result there are now no Orders in force which are capable of regulating and safeguarding the position of these children. In point of fact the elder has now reached the age of 16 but the younger is now still only 13 years of age. The situation remains that they are at risk and the Local Authority is under a statutory obligation to take steps to protect them and to seek to ensure their welfare. The Court has been told that as a result of action taken by the Regional Health Authority prompted by the Judge, the father did in fact go to The Gracewell Clinic following the proceedings before Mr Justice Ward. However the Court has also now been told by his Counsel that he has since left the clinic. The Court has not been told the circumstances under which that occurred. Since the fact of the risk of significant harm to the children has been established and not contradicted there remains upon the Local Authority the clear duty to take steps to safeguard the welfare of these children. It should not shrink from taking steps under part IV of the Act. It appears from submissions made by all Counsel in this Court that the mother, the father and the children by their Guardian ad Litem would not resist the making of a Supervision Order in favour of the Local Authority pursuant to Section 31 of the Act. That at least would afford a basis for the Local Authority to take some constructive steps in order to protect these children. This Court is deeply concerned at the absence of any power to direct this Authority to take steps to protect the children. In the former wardship jurisdiction it might well have been able to do so. The operation of the Children Act is entirely dependent upon the full co-operation of all those involved. This includes the Courts, the Local Authorities and the Social Workers and all who have to deal with children. Unfortunately as appears from this case if a Local Authority doggedly resists taking the steps which are appropriate to the case of children at risk of suffering significant harm it appears that the Court is powerless. The Authority may perhaps lay itself open to an application for Judicial Review but in a case such as this the question arises at whose instance? The position is one which it is to be hoped will not recur and that lessons will be learnt from this unhappy catalogue of errors. For the reasons set out in this judgment, the Court dismisses the appeal of the Local Authority and allows the appeals of the other appellants. MR HAYWARD SMITH: My Lord, I ask on behalf of the guardian and the legal aid fund that your Lordships say that the Local Authority bear the funds of this appeal. THE PRESIDENT: You are legally aided. MR HAYWARD SMITH: Yes. THE PRESIDENT: So are your colleagues. MR HAYWARD SMITH: My Lord, yes. THE PRESIDENT: First of all, I think you each have your legal aid taxation. MR HAYWARD SMITH: My Lord, I am obliged. So far as the costs are concerned, my Lord, if the Local Authority had adopted the approach urged upon them by His Honour Judge Heald and by Mr Justice Ward, this appeal would be unlikely ever to have come before your Lordships. My Lords, we say that the stance taken by the Local Authority has incurred a great deal of costs and it would be wrong for the fund to have to bear those costs. Accordingly, we ask for costs (I now speak on behalf of the Guardian) from the Local Authority. THE PRESIDENT: Yes. MISS PARKER: I make a similar application on behalf of the mother. MISS SCOTLAND: We make a similar application on behalf of the father. We think this was a wholly unnecessary appeal, unmeritorious and, therefore, there can be no reasonable basis for it to be pursued and costs should follow. Your Lordship should know that the legal aid fund is sorely pressed at the moment. THE PRESIDENT: We have heard something about that. MISS SCOTLAND: We think that, of all cases, this case would merit a proper order in their favour. MISS EDWARDS: I have three very brief submissions. It is appropriate that each party should bear their own costs. The action taken by the Local Authority in this case was bona fide; they were attempting to achieve what the Local Authority thought was best for the children. Your Lordships will note that they were attempting to find a solution in a case where there was no ideal solution, and the Local Authority believed the route they were taking would involve the minimum disruption to the children and as little intervention as possible in the rights of life in this family. I accept that I am bound by your Lordships' decision that the route chosen was inappropriate, but nevertheless I would submit that the fact that the Local Authority formed a view which has not been adopted, and which Lordships have found the law would not allow is not a reason, in my submission, that the Local Authority should be penalised. THE PRESIDENT: Why should not the costs follow the event? MISS EDWARDS: My Lord, I would say that in a case such as this, a children's case, it is unusual to award costs in children's cases. There has been dicta in a number of cases, notably in Gojkovic by Lord Justice Butler-Sloss to that effect. It is unusual to award costs in children's cases. THE PRESIDENT: The problem here is that it is clear from the very outset, apparently, both the mother, the father and the guardian were saying that they would agree to the making of a supervision order. MISS EDWARDS: My Lord, I accept that. THE PRESIDENT: Indeed, His Honour Judge Heald was urging that course and, of course, so did Mr Justice Ward. The matter has been pursued in this court notwithstanding all that has been said and, possibly, after time for reflection. MISS EDWARDS: My Lord, though of course I accept that, as indeed your Lordships have stated in your Lordship's Judgment, the appeal of the Local Authority has raised important questions of law and policy; the interaction of the public and private law under the Children Act has, until this case, in my submission, been very much unchartered waters. I would submit that there are important public issues which needed to be aired. This Local Authority needed clarification not only for this case but for other cases, and indeed there has been considerable interest in the case from other local authorities. In my submission, for those reasons, it would not be right for the council tax payers of Nottingham to bear the entire cost. We would say that we would know for next time that, at the time this case was heard, it was unchartered waters and that the view the Local Authority held was honest and bona fide; the Local Authority were trying to do what they thought was best for the children. My Lord, I do say that all three parties are legally aided. If the Local Authority had been successful, the Local Authority would not have been able to recover costs from them and, in those circumstances, I would submit that the order would be no order in this case. THE PRESIDENT: Do you wish to reply? MR HAYWARD-SMITH: If the test as to whether an order for costs should be made was whether one or other party was acting bona fide, my Lord, it may be that orders for costs may not be made. THE PRESIDENT: Yes. MR HAYWARD-SMITH: One other point, my Lord, is that on 6th March the solicitor acting for the Guardian wrote to the Local Authority asking what stance they intended to take in response to the indication given by His Honour Judge Heald, which your Lordship knows about. My Lord, as I understand it, there was no reply by the Local Authority to that letter. ( A short while later ) THE PRESIDENT: We take into account the fact that all the parties are appellants in fact in this case and that some of the time was taken up, of course, with the orders which the learned judge made in respect of a Residence Order. The proper result is that the Local Authority should pay one half of the costs of each of the other parties. MISS EDWARDS: My Lord, I have one other application to make. I would apply for leave to appeal to the House of Lords on the basis that this case has raised important questions of law and policy. THE PRESIDENT: Leave is refused; your application is refused. THE PRESIDENT: This is the Judgment of the Court. The Court has before it a series of appeals from a Judgment delivered by Mr Justice Ward on the 27th October 1992. The Judge then refused an application by the Nottinghamshire County Council for a Prohibited Steps Order made pursuant to Section 8 of The children Act 1989. By its application the Nottinghamshire County Council stated that it wished the Court to order that the father should not reside in the same household as his daughters and should not have any contact with them unless they themselves wished to have contact with him and that any such contact should be supervised by the Social Services Department, such contact to be negotiated between the mother, father and the daughters with a condition that the mother should not knowingly place the daughters in a position where they come into contact or reside with the father. It stated that it was making the application: "In order to stop/prevent the sexual abuse of the daughters by the father and its emotionally and physically damaging effects." Further that its plans for the children were "That the eldest child should reside with her mother and should receive appropriate help and resources from the Social Services Department and other appropriate agencies regarding sexual abuse. That the child should only have contact with the father at her request and under the supervision of the Social Services Department." Order: The mother, the father and the children by their Guardian ad litem all appeal against the orders which the learned Judge made for residence with the mother and in particular the restrictions with regard to contact.

Nottingham County Council v P [1993] EWCA Civ 35

The Judge continued:

the Judge said:

THE PRESIDENT: You are legally aided.

THE PRESIDENT: So are your colleagues.

THE PRESIDENT: First of all, I think you each have your legal aid taxation.

THE PRESIDENT: Yes.

THE PRESIDENT: We have heard something about that.

THE PRESIDENT: Why should not the costs follow the event?

THE PRESIDENT: Do you wish to reply?

THE PRESIDENT: Yes.

THE PRESIDENT: Leave is refused; your application is refused.

Order

Cited in 7 later judgments