LAW REPORT:Court could make order against non-party

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Re H (minors).

Court of Appeal (Lady Justice Butler-Sloss, Sir Ralph Gibson).

2 February 1995.

A court had jurisdiction in family proceedings to make a "prohibited steps" order against a non-party.

The Court of Appeal allowed an appeal by the guardian ad litem representing six children, supported by the local authority and the children's mother, against the decision of Judge Charlesworth, sitting in Leeds County Court on 21 March 1994, not to make a prohibited steps order under section 8(2) of the Children Act 1989 against Mr J. The appeal court varied the order to include a prohibited steps order against Mr J, not to have contact with the middle four children, aged 15, 13, 9 and 7.

Paul Isaacs (Ford & Warren, Leeds) for the appellants; Janet Haywood (Levi & Co, Leeds) for the respondent.

LADY JUSTICE BUTLER-SLOSS said that in 1990 the mother had formed a relationship with Mr J, who was not the father of any of the children, and cohabited with him until 1994. The judge found that Mr J had sexually abused the youngest of the children, aged6, who was now in the care of the local authority. It was clear Mr J posed a risk to all the children.

On an application by the local authority the judge made a prohibited steps order against the mother to prevent contact between the children and Mr J, but did not make such an order against Mr J.

A prohibited steps order was defined in section 8 of the 1989 Act as: "an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court".

By section 9(5): "No court shall exercise its power 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".

A contact order included an order that there be no contact: see Nottingham CC v P [1993] 2 FLR 134.

The judge had no power to make a prohibited steps order against the mother since that would achieve the same result as a contact order requiring her not to allow contact with Mr J and could be enforced in the same way.

A prohibited steps order which required Mr J neither to have nor to seek contact with the children did not contravene section 9(5). If a "no contact" order had been made against the mother, the order would be directed at her as the subject of the order, and the obligation would be on her to prevent any contact by the children with Mr J. There could not be a "no contact order" directing Mr J not to have nor seek contact with the children. But a contact order would not in this case achieve the required result.

It was said to be wrong in principle to make an order against Mr J when he was neither a party nor present in court. He should have been given an opportunity to be heard. But although with hindsight it was unfortunate that Mr J had not been allowed to intervene, the judge had been entitled to refuse to join him.

If a person on whom a prohibited steps order was served wished to object, he would no doubt be given the leave required by section 10(2) to make a section 8 application to vary or discharge the order. But in any event, the judge had power to circumvent that procedural difficulty by making an order under section 11(7)(d), which stated that an order under section 8 might "make such incidental, supplemental or consequential provision as the court thinks fit".

Mr J would be given leave to apply to vary the order: that was sufficient to meet the justice of the case.

Paul Magrath, Barrister