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Using the Inherent Jurisdiction to Disrupt Child Sexual Exploitation

Heather Popley, barrister of No 5 Chambers, examines the innovative use of civil injunctions in the recent Birmingham case.

Heather Popley, barrister, No 5 Chambers













Heather Popley, barrister, No 5 Chambers

On the 15th December 2014 Mr Justice Keehan handed down his fully reasoned judgment in six connected cases involving child sexual exploitation (reported as Birmingham City Council v Riaz and Others [2014] EWHC 4247).  Earlier media coverage in November 2014 had drawn attention to the orders he had made granting civil injunctions against 10 respondents and naming the men involved in child sexual exploitation.

He refers in the judgment to the applications brought by Birmingham City Council as being a "bold and innovative approach" stating that the injunctive orders will protect the child who was the subject of the hearings and other vulnerable young females.  His judgment concluded:

"I hope that the approach I have taken in this case and the orders I have made will send a powerful message to those who engage in the CSE of young females or are considering doing so.  I very much hope that the stance taken by Birmingham City Council, in close co-operation with the West Midland's Police, will be considered and followed by other local authorities in cases of CSE."

Child sexual exploitation
Unfortunately CSE is prevalent within the UK. There is increasing awareness, both professional and public, of the damage that sexual exploitation inflicts upon children and vulnerable young adults irrespective of gender. The impact is not restricted to their childhood and adolescence; there can be lasting consequences throughout the victims' lives. 

If there was any doubt on these points, then reference only needs to be made to any of the recent reports including:

Practitioners will be aware of the struggle to take effective steps to protect victims of CSE and to disrupt and stop the perpetrators. The challenges faced are even greater when the victims are in their mid to late teens, one reason being that often these victims do not appreciate and realise that they are at risk of or are being sexually exploited. This feature was clearly acknowledged in the judgment with the court identifying that "all too often they have suffered abusive and neglected childhoods and are attracted to and flattered by men who seek them out.  They are seduced by the attention given to them whether by way of compliments, gifts, drugs or alcohol."

This often comes at the stage of their lives when establishing a degree of self-autonomy and independence from carers is an essential part of growing up.

Inherent jurisdiction
Keehan J granted the permission, necessary pursuant to section 100(3) of the Children Act 1989, to enable the local authority to pursue the applications for injunctions against the men believed to have sexually exploited the child in their care.

He drew attention to Practice Direction 12D from the Family Procedure Rules 2010 rehearsing that:

1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child's protection of which the following are the most common: -

a) orders to restrain publicity;

b) orders to prevent an undesirable association;

c) orders relating to medical treatment;

d) orders to protect abducted children, or children where the case has another substantial foreign element; and

e) orders for the return of children to and from another state.

He stated at paragraph 46 of the judgment:

"I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the 'self imposed limits' on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case."

The injunctive orders
The detailed terms of the injunctions are set out in full in the judgment.  They include prohibitions on the men having contact with the child herself (which includes not only physical contact but also via social media even if instigated by the child) and approaching in public places or having in their vehicle any other females under the age of 18 years with whom they are not previously associated.

Mr Justice Keehan explained his inclusion of this extension beyond the subject child by reference to the findings of fact he made against the individual men which drove him to the conclusion that he was  "satisfied, that unless prohibited from doing so, there is a real risk that each of them would seek to sexually exploit other vulnerable young females under the age of 18. Accordingly I am satisfied that the terms of the proposed order……… are fair, necessary, and proportionate to the risk I have identified and are clear."

Whilst successful criminal prosecution of the perpetrators would represent the strongest public sanction for sexually exploitative behaviour, it is not always possible, nor always appropriate, to leave the protection of vulnerable children and young adults to the criminal process alone. In many cases orders restricting the liberty of the child, such as a secure accommodation order, are seen as the first step.   Sometimes it is an essential and unavoidable step in securing the child's safety and longer-term wellbeing but when taken in isolation, can be felt to be inappropriately punitive as reflected in paragraph 158 of Keehan J's judgment: "whilst that action is taken in the best interests and to protect the young victim, it strikes me as wrong and unfair that no action is taken against the perpetrators of child sexual exploitation."

 The use of injunctive orders should be seen, therefore, as an essential piece of the jigsaw. They enable both the immediate protection of the child from the person involved in CSE they should also act as a deterrent to dissuade and disrupt the abusive and exploitative practices of the perpetrators.

As with secure accommodation orders, the use of injunctive orders should not be regarded as a 'one size fits all' approach nor should their granting prevent active pursuit of other steps to build a larger protective network either for the individual child or for children and vulnerable young adults in the wider community.  Local authorities and police forces should consider the other available civil and criminal remedies and powers.  These injunctions themselves were drafted with an eye towards the provisions in the Crime and Disorder Act 1998 (anti social behaviour orders) and the Sexual Offences Act 2003 (sexual offences prevention orders and risk of sexual harm orders). [Note that these orders themselves will be replaced by sexual harm prevention orders and sexual risk orders when the relevant provisions of the Anti-Social Behaviour Crime and Policing Act 2014 are brought into operation.]

Education (not limited to the children seen to be at risk) and engagement of the community and local businesses with the issues should also be regarded as important tools in the process of disruption and prevention.

As all lawyers will recognise, the obtaining of a court order is just the start.  His Lordship referred to the need to demonstrate that there is a real prospect that something will be gained from the orders.  He was satisfied that the local authority and police can and would ensure that the orders were obeyed and in his eyes the gains would be:

i) the protection of the child and other vulnerable young females;

ii) the prevention of the 10 respondents from engaging in CSE; and

iii) the deterrent to other adult males from engaging in CSE.

Background to this specific case
Unsurprisingly the child in this case had a turbulent upbringing. She was a looked after child, although it should be noted that in theory the use of the inherent jurisdiction in this way is not limited to a child who is in the care of a local authority. She had a significant past history that demonstrated that she was a vulnerable young woman at a continuing risk of sexual exploitation. She had come to the attention of the police as a result of repeated incidents where she was reported as missing.

Due to her repeat absconding and association with older adult males, her situation became increasingly difficult and was causing extreme concern to the police and local authority, provoking the desire to find another way to secure protection for her.

The ten male respondents to the local authority's applications were identified as having been connected with this one child in the following circumstances: 

Save for one of the men, the age difference between the child and the men involved ranged from 10 to 23 years.

Balance of probabilities
In reaching the factual conclusions that he did in the case of each of the respondents Keehan J confirmed that the standard of proof to be applied was the balance of probabilities as defined by the Supreme Court in Re B [2013] UKSC 33. 

The evidence presented in support of the applications included social work and police statements reflecting the multi-agency co-operative approach in the preparation of the case.   Inevitably the local authority applications relied heavily upon direct observations of various police officers and their written and oral evidence. 

Whilst the child was the connecting link between each of the cases, save where the hearing was limited to the principles of reporting, the cases were heard separately from each other with the evidence provided to each respondent restricted to that involving him or his direct co-respondents.

The child did not give evidence in the proceedings but was at various stages separately represented.

At an early stage directions were given to place an onus on the respondents to individually set out their connection with the child, how they came to be in contact with her and to explain the circumstances of the events which brought them before the court.

Keehan J found that the men had been engaged in the sexual exploitation of the child; that they were grooming her and preparing to engage in sexual activity with her.

Reporting restriction orders and publicity
Whilst initially commencing in chambers with private hearings, in the light of the clear public interest in the subject matter the hearings soon moved to open court.  Until findings of fact were made and final injunction orders granted, reporting restriction orders prevented the identification of the respondents.  The child was subject to wider protection and consideration will be given in a further hearing to the issue of whether the protection should be extended beyond her minority.

This case attracted widespread media interest not only due to the content of the injunctions but also due to the impact of the discharge of the reporting restriction orders (RROs).   There are now no reporting restriction orders limiting what the media can publish about the respondents.

The Press Association addressed the court in support of the lifting of the RROs protecting the identity of the respondents due to the fact the they are exceptional orders to have in proceedings heard in open court and given the clear public interest in proceedings concerning child sexual exploitation. The respondents and the West Midlands Police objected to the publication of the respondents' names. The police submitted that there was a risk to the respondents if their names were published and this risk could extend beyond the respondents to their families. The respondents supported this argument.

The judgment provides a helpful analysis of the impact of the competing human rights pursuant to Articles 2, 3, 8 and 10 of the European Convention of Human Rights and their application in this case. The judge was not satisfied that there was a real risk to lives of the respondents on the evidence presented to him. Furthermore, the respondents' right to respect for private and family life did not outweigh the public's right to know about the proceedings pursuant to Article 10 of the Convention.

At paragraph 152-153 Keehan J notes:

"The sexual exploitation of young females by much older men attracts very considerable and widespread public interest. The extent of such activities around the country is only now emerging. I am satisfied that there are exceedingly powerful arguments in favour of the public knowing the details of cases of child sexual exploitation and in respect of proceedings held in open court.

"I have considered the competing rights and the arguments made in support of each. I am in no doubt that the balance in this falls clearly and decisively in favour of the article 10 rights of the press and broadcast media. Accordingly I discharge the RROs in respect of each respondent. There are no restrictions on what the media may report about any of them."

Multi-agency approach
In the instant case the local authority and the police worked closely together to establish the whereabouts of the child when missing, to flag up the risks at multi-agency meetings and to draw together and make available the evidence and witnesses from various sources necessary to pursue the applications.

The interim and final injunctions have all been served upon the West Midlands Police, with the approval of the court, to act as a further deterrent and enforcement aid in the event of a breach of the injunctions. This does not mean that there is a power of arrest.  Breach of the orders will need to be dealt with as a contempt of court.

Such multi-agency co-operation is crucial in combating CSE. The need and ability to share information across professional borders and geographical boundaries to protect vulnerable children and young adults is vital. It is a unifying recommendation within the reports and enquiries highlighted above. The close working in this case between the police officers, social workers and legal teams has underlined for those involved the benefits that flow from face to face discussions between differing disciplines.

The court acknowledged the efforts behind the scenes in the concluding paragraphs of the judgment in this manner:

"I wish to praise…the degree of close and effective co-operation between the police and the local authority.  It has been a model of its type and has played a crucial role in bringing these proceedings to a successful conclusion."

___________________

Heather Popley

With contributions from Lorna Meyer QC and Stefano Nuvoloni. All three authors are members of No 5 Chambers and acted for the local authority.

30/12/14