LAW REPORT:Court could make order against non-party

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

News
people'It can last and it's terrifying'
Sport
Danny Welbeck's Manchester United future is in doubt
footballGunners confirm signing from Manchester United
Sport
footballStriker has moved on loan for the remainder of the season
Sport
footballFeaturing Bart Simpson
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
New Articles
Olivia Colman topped the list of the 30 most influential females in broadcasting
tv
News
Kelly Brook
peopleA spokesperson said the support group was 'extremely disappointed'
News
The five geckos were launched into space to find out about the effects of weightlessness on the creatures’ sex lives
i100
Life and Style
techIf those brochure kitchens look a little too perfect to be true, well, that’s probably because they are
Sport
Andy Murray celebrates a shot while playing Jo-Wilfried Tsonga
TennisWin sets up blockbuster US Open quarter-final against Djokovic
Arts and Entertainment
Hare’s a riddle: Kit Williams with the treasure linked to Masquerade
booksRiddling trilogy could net you $3m
Arts and Entertainment
Alex Kapranos of Franz Ferdinand performs live
music Pro-independence show to take place four days before vote
News
news Video - hailed as 'most original' since Benedict Cumberbatch's
News
i100
Life and Style
The longer David Sedaris had his Fitbit, the further afield his walks took him through the West Sussex countryside
lifeDavid Sedaris: What I learnt from my fitness tracker about the world
Arts and Entertainment
Word master: Self holds up a copy of his novel ‘Umbrella’
booksUnlike 'talented mediocrity' George Orwell, you must approach this writer dictionary in hand
News
i100
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

SQL Implementation Consultant (VB,C#, SQL, Java, Eclipse, integ

£40000 - £50000 per annum + benefits+bonus+package: Harrington Starr: SQL Impl...

SQL Technical Implementation Consultant (Java, BA, Oracle, VBA)

£45000 - £55000 per annum + Benefits + Bonus: Harrington Starr: SQL Technical ...

Head of IT (Windows, Server, VMware, SAN, Fidessa, Equities)

£85000 per annum: Harrington Starr: Head of IT (Windows, Server, VMware, SAN, ...

Lead C# Developer (.Net, nHibernate, MVC, SQL) Surrey

£55000 - £60000 per annum + Benefits + Bonus: Harrington Starr: Lead C# Develo...

Day In a Page

'I’ll tell you what I would not serve - lamb and potatoes': US ambassador hits out at stodgy British food served at diplomatic dinners

'I’ll tell you what I would not serve - lamb and potatoes'

US ambassador hits out at stodgy British food
Radio Times female powerlist: A 'revolution' in TV gender roles

A 'revolution' in TV gender roles

Inside the Radio Times female powerlist
Endgame: James Frey's literary treasure hunt

James Frey's literary treasure hunt

Riddling trilogy could net you $3m
Fitbit: Because the tingle feels so good

Fitbit: Because the tingle feels so good

What David Sedaris learnt about the world from his fitness tracker
Saudis risk new Muslim division with proposal to move Mohamed’s tomb

Saudis risk new Muslim division with proposal to move Mohamed’s tomb

Second-holiest site in Islam attracts millions of pilgrims each year
Alexander Fury: The designer names to look for at fashion week this season

The big names to look for this fashion week

This week, designers begin to show their spring 2015 collections in New York
Will Self: 'I like Orwell's writing as much as the next talented mediocrity'

'I like Orwell's writing as much as the next talented mediocrity'

Will Self takes aim at Orwell's rules for writing plain English
Meet Afghanistan's middle-class paint-ballers

Meet Afghanistan's middle-class paint-ballers

Toy guns proving a popular diversion in a country flooded with the real thing
Al Pacino wows Venice

Al Pacino wows Venice

Ham among the brilliance as actor premieres two films at festival
Neil Lawson Baker interview: ‘I’ve gained so much from art. It’s only right to give something back’.

Neil Lawson Baker interview

‘I’ve gained so much from art. It’s only right to give something back’.
The other Mugabe who is lining up for the Zimbabwean presidency

The other Mugabe who is lining up for the Zimbabwean presidency

Wife of President Robert Mugabe appears to have her sights set on succeeding her husband
The model of a gadget launch: Cultivate an atmosphere of mystery and excitement to sell stuff people didn't realise they needed

The model for a gadget launch

Cultivate an atmosphere of mystery and excitement to sell stuff people didn't realise they needed
Alice Roberts: She's done pretty well, for a boffin without a beard

She's done pretty well, for a boffin without a beard

Alice Roberts talks about her new book on evolution - and why her early TV work drew flak from (mostly male) colleagues
Get well soon, Joan Rivers - an inspiration, whether she likes it or not

Get well soon, Joan Rivers

She is awful. But she's also wonderful, not in spite of but because of the fact she's forever saying appalling things, argues Ellen E Jones
Doctor Who Into the Dalek review: A classic sci-fi adventure with all the spectacle of a blockbuster

A fresh take on an old foe

Doctor Who Into the Dalek more than compensated for last week's nonsensical offering