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

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
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

Guru Careers: Software Developer / C# Developer

£40-50K: Guru Careers: We are seeking an experienced Software / C# Developer w...

Guru Careers: Software Developer

£35 - 40k + Benefits: Guru Careers: We are seeking a Software Developer (JavaS...

SThree: Trainee Recruitment Consultant / Resourcer

£18000 - £23000 per annum + Commission: SThree: As a Trainee Recruitment Consu...

Ashdown Group: UI Developer - (UI, HTML, CSS, JavaScript, AngularJS)

£25000 - £40000 per annum: Ashdown Group: UI Developer - (UI, JavaScript, HTML...

Day In a Page

Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine
Letterman's final Late Show: Laughter, but no tears, as David takes his bow after 33 years

Laughter, but no tears, as Letterman takes his bow after 33 years

Veteran talkshow host steps down to plaudits from four presidents
Ivor Novello Awards 2015: Hozier wins with anti-Catholic song 'Take Me To Church' as John Whittingdale leads praise for Black Sabbath

Hozier's 'blasphemous' song takes Novello award

Singer joins Ed Sheeran and Clean Bandit in celebration of the best in British and Irish music
Tequila gold rush: The spirit has gone from a cheap shot to a multi-billion pound product

Join the tequila gold rush

The spirit has gone from a cheap shot to a multi-billion pound product
12 best statement wallpapers

12 best statement wallpapers

Make an impact and transform a room with a conversation-starting pattern
Paul Scholes column: Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?

Paul Scholes column

Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?