Law Report: County council acted inappropriately over children at risk: Re P (minors). Court of Appeal (Sir Stephen Brown, President, Lord Justice Hirst and Lord Justice Waite). 6 April 1993

A local authority which believes children to be at risk of suffering significant harm should proceed by way of public law applications for care or supervision orders under Part IV of the Children Act 1989, and not use the private law provisions in Part II to apply for orders such as a prohibited steps order.

The Court of Appeal dismissed an appeal by Nottinghamshire County Council from Mr Justice Ward's refusal on 27 October to make a prohibited steps order and allowed appeals by the mother, father and children's guardian ad litem against a residence order in favour of the mother with restrictions as to contact with the father.

The council applied, having obtained ex-parte the leave of a single justice of a Family Proceedings Court, for a prohibited steps order under section 8 of the Children Act 1989 that the father should not reside in the same household as his daughters and any contact should be supervised by the social services department. The judge found that the father had persistently sexually abused the eldest of his three daughters, that the two younger daughters were seriously at risk of abuse, the mother was weak, under his control and unable to protect the children, and that if the father were to be excluded from the home, there was a real risk that the girls would run away to him.

The judge was critical of the council's failure to apply for a care order or a supervision order under Part IV of the Act, to which all parties other than the council were willing to submit, and adjourned the case for the father to be assessed by The Gracewell Clinic, which specialised in the treatment of sexual offenders. The clinic reported that the father could respond to treatment. However the council was unable to fund his placement at the clinic.

The judge, having regard to section 9(2), which prohibits a local authority from seeking residence and contact orders, decided that the application sought to determine the residence of the children and the degree of contact with the father and therefore, under the restrictions in section 9(5), a prohibited steps order could not be made. The judge said he had no option but to make the residence order using an application by the father which was technically before the court.

Ian Karsten QC and Sarah Edwards (Council Solicitor) for the council; Judith Parker QC and Deboral Eaton (Sheltons, Nottingham) for the mother; R Hayward-Smith QC (German and Soar, Nottingham) for the children's guardian ad litem; Patricia Scotland QC and Cynthia Gifford (Curtis & Parkinson, Nottingham) for the father.

SIR STEPHEN BROWN, President, giving the court's judgment, said that the appeal raised 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 1989 Act instead of proceeding by way of the public law provisions in Part IV.

The council's application for a prohibited steps order was in reality being made with a view to achieving a result which could be achieved by making a residence or contact order. The court agreed with the judge that he had no power to make a prohibited steps order in this case. The sensible and appropriate construction of the term 'contact order' included a situation where a court was required to consider whether any contact should be provided for. An order that there should be no contact fell within the general concept of contact and common sense required that it should be considered within the definition in section 8(1). The local authority's appeal was dismissed.

A wider question arose as to policy. It should be made clear that the route chosen by the council in this case was wholly inappropriate. In cases where children were found to be at risk of suffering significant harm within section 31, a clear duty arose on the part of local authorities to protect them. Part IV provided them with wide powers and a wide discretion.

The Act envisaged that local authorities might place children with their parents even though they had a care order under section 31. A supervision order might be viewed as less draconion but it gave the local authority a wide discretion as to how to deal with children and the family. A prohibited steps order would not afford the local authority any authority as to how it might deal with the children.

There might be situations, for example, where a child was accommodated by a local authority, where it would be appropriate seek a prohibited steps order. However it could not in any circumstances be regarded as providing a substitute for an order under part IV of the Act. It was very doubtful whether a prohibited steps order could in any circumstances be used to 'oust' a father from a matrimonial home.

This council 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.

It was wholly inappropriate in the first place for the council to apply for leave to issue its application ex-parte before the single justice. If the matter had been referred to the county court it was likely that the application would have been refused. 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.

The residence order was made by the judge under protest and could not stand. Therefore there were now no orders which were capable of regulating and safeguarding the position of these children. The council remained under the clear duty to take steps to safeguard the welfare of the children and should take steps under Part IV of the Act.

The court was deeply concerned at the absence of any power to direct the council 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 was entirely dependent on the full co-operation of all those involved. That included the courts, the local authorities and the social workers and all who had to deal with children.

Unfortunately, if a local authority doggedly resisted taking steps which were appropriate to children at risk of suffering significant harm it appeared that the court was powerless. The position was one which it was to be hoped would not recur.