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Preventing Child Sexual Exploitation: a lacuna in the law

Matthew Warmoth, pupil barrister at Fourteen, finds that the court can do little to protect children from CSE when the exploiter is not a party to proceedings and there has been no police caution or conviction for a sexual or violent offence.



Matthew Warmoth
, pupil barrister, Fourteen

To what extent can the court protect children from child sexual exploitation, when the exploiter is not a party to proceedings and when there has been no police caution or conviction for a sexual or violent offence? This was the recent quandary that was before a circuit judge who was not sitting as a Section 9 Judge. In a disturbing, unreported case involving two girls aged 14 and 13, the judge asked: "What can I do to help these girls? What injunctive relief is available to the court?"

In short, the answer to the judge's question was nothing.


Background

The girls were each the subject of an interim care order. One was in foster care. The other was being fostered by a family friend. These were to become their long-term placements. The older girl, P, had been in a sexual relationship with an 18-year-old boy, D, for over a year. P considered herself to be in a consensual relationship but was also sexually active with a number of D's friends. D was believed to have been sexually active with a number of other underage girls.

The police were aware but, as yet, had not cautioned nor charged D. The charging decision had been delayed until later 2016. Until then, it was said, the police could do nothing. In an attempt to prevent P from meeting up with D, the local authority provided a taxi service to and from school. However, P was truncating her taxi journeys and meeting up with D. The judge noted that every time they met up for the purposes of sexual intercourse, D was breaking the law.

What then were the options available to the family court?


Option One: Family Law Act 1996

The Law
Section 42 of the Family Law Act 1996
might have provided a suitable legal vehicle. Section 42(1)(a) is a "provision prohibiting a person ("the respondent") from molesting another person who is associated with the respondent. Section 42(1)(b) is a "provision prohibiting the respondent from molesting a relevant child". Section 42(2) states that the Court may make a non-molestation order: (a) "if an application for the order has been made by a person associated with the respondent"; or (b) "if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made."

A "relevant child" per section 62(1)(a) is "any child who is living with or might reasonably be expected to live with either party to the proceedings". In addition, section 62(1)(c) provides a "relevant child" is "any other child whose interests the court considered relevant".

Section 62(3)(ea) provides that a person is associated with another person if "they have or have had an intimate personal relationship with each other which is or was of significant duration".

Application to the current proceedings
D was not a party to proceedings. As yet, there is a dearth of case law on the interpretation of section 62(3)(ea). However, in JM v CZ [2014] EWHC 1125 (Fam), Mostyn J stated at paragraph 3 of his judgment that:

"Put shortly, the factual position is that for many years these two people, the applicant and respondent, had been in a close relationship which fell short of cohabitation, but which involved many sexual liaisons, as a result of which, in August 2013, the respondent fell pregnant."

Clearly the couple in JM had a relationship of a different nature from the present case. It may be that this provision could not be used to artificially elevate a relationship to something that it was not, simply for the purposes of injunctive relief under the Family Law Act. In any event, P was not willing to apply for injunctive relief. She believed their relationship to be a genuine, legitimate and loving one.

The judge could have joined D as a party, so the court could seek to make an order of its own volition. This would circumvent the need for P to apply herself. Even had the judge done that, it would have required P to have been willing to enforce the order – which she was not.


Option 2: Protection from Harassment Act 1997

The Law
Section 1 of the Protection from Harassment Act 1997
states that a person must not pursue any course of conduct which: "(a) amounts to harassment of another, and; (b) he knows or ought to know amounts to harassment of another". At paragraph 303 of the Government's Explanatory Notes to the Act, it states that "Under section 1 of the 1997 Act the term 'harassment' applies to a course of conduct which harasses or alarms another or which causes that person distress. The conduct has to take place on at least two occasions."

Section 3 provides the civil remedy for an actual or apprehended breach. It states that any claim in civil proceedings may be brought "by the person who is or may be the victim of the course of conduct in question." Section 3 further provides the vehicle to enforce an injunction made by a judge, with section 3(6) stating that where an injunction has been granted and without reasonable excuse that injunction is breached, the person in breach will be guilty of an offence. That person could be liable to up to 5 years in prison (section 3(9)). The standard of proof is the civil standard, not the criminal standard (Jones v Hipgrave [2004] EWHC 2901 (QB); [2005] A.C.D. 67, Tugendhat J at paragraph 18). 

Application to the current proceedings
The wording of the Protection from Harassment Act is clear, namely that any application for injunctive relief must be made by the person who "is or may be the victim" of harassment. In Lomas v Parle (Practitioners Note) [2003] EWCA Civ 1804; [2004] 1 WLR. 1642, Thorpe LJ confirmed that an application must be made by the victim. His Lordship states (paragraph 45) that "the victim of domestic violence has some choice of civil remedies … section 42 of the Family Law Act and under section 3 of the Protection from Harassment Act 1997."

Plainly, whichever relief a victim chooses to seek, the victim themselves must be the applicant. Again, P would not apply for the order.


Option 3: Child Abduction Warning Notice/ Sexual Harm Prevention Order/ Sexual Risk Order

The Law – Child Abduction Warning Notice

A Child Abduction Warning Notice (also known as a Harbourer's Warning Notice) is not an order of the court. There is no statutory or other legislative provision dealing specifically with the issue of Child Abduction Warning Notices. However, they may soon have a statutory basis following the parliamentary debates surrounding the Serious Crime Bill (See theHansard Debates – HC Deb, 23 February 2015, c143). Legislative authority for a Child Abduction Warning Notice and Child Protection Warning Order would be encapsulated in a new section 2A of the Child Abduction Act 1984. However, for now, breach of a Child Abduction Warning Notice is not a criminal offence. These notices are simply part of an administrative process. If issued properly, these notices can provide evidence to support the prosecution of other criminal offences and/or to support civil proceedings such as ASBOs, evictions or injunctions.

As noted by Horner J in the Northern Irish case of In the Matter of an Application by Richard Swann for Judicial Review and In the Matter of the Service on him on 6 August 2012 of a Harbourer's Warning Notice [2014] NIQB 81 at paragraph 5 of his judgment:

"Essentially the purpose of the Harbourer's Warning Notice is an administrative process to act as a formalised record of a warning to the subject that a person enjoying parental responsibility for a child has forbidden the child from contact with the subject and that for the subject to knowingly and without lawful authority or reasonable excuse take or keep the child away from its parents or to induce, assist or incite the child to run or stay away from the parent may render the subject liable to arrest for child abduction."

In R v Mortimore (Aaron George) [2013] EWCA Crim 1639, the circumstances in which a 15-year-old girl had been found in the company of a 20-year-old man were sufficient to enable a jury to infer that the man had detained her within the meaning of the Child Abduction Act 1984 s.2(1)(b). The fact that the man had previously been served with a Warning Notice in respect of an identical offence in relation to the same girl was relevant, probative and admissible. In Mortimore, the judge at first instance, and as endorsed by Pitchford LJ, directed the jury that:

"A person shall be regarded as detaining a child if he causes her to be detained or induces the child to remain with him. I will say that again. A person shall be regarded as detaining a child if he causes her to be detained or induces the child to remain with him. The word 'detained' does not mean that the prosecution need to prove that it was against [SR's] will. It does not matter so far as the offence is committed whether SR wanted to be there, consented to being in the defendant's company, although such things would be relevant to what sentence may be appropriate in due course."

Clearly then, a Child Abduction Warning Notice can be a useful mechanism in proving a more substantial offence. Child Abduction Warning Notices are issued to suspects and or associates who are believed to place the subject at risk of offences being committed against them. In particular, if a child is under 16 years of age, section 2 of the Child Abduction Act (as above in Mortimore) may well be a relevant consideration. If a child is under 18 years and in local authority care under section 31 Children Act, section 49 of the Children Act may well be a relevant consideration.

A Child Abduction Warning Notice is a safeguarding measure for the child concerned as well as a potentially integral first stage of case building for possible prosecution under the Child Abduction Act and or any other relevant legislation such as the Sexual Offences Act 2003, or to support applications such as a Sexual Harm Prevention Order under section 103A Sexual Offences Act or a Sexual Risk Order under section 123A Sexual Offences Act.

The Law – Sexual Harm Prevention Orders
The Sexual Harm Prevention Order replaced the Sexual Offender Prevention Order and Foreign Travel Order (ss.103A-103K Sexual Offences Act). To apply for a Sexual Harm Prevention Order, the court must deal with the defendant in respect of a qualifying offence which are contained within Schedules 3 and 5 to the Sexual Offences Act (section 103A(2)(a)(i)) unless there is a finding that the defendant is not guilty by way of insanity or that the defendant is under a disability and has done the act charged (section 103A(2)(a)(ii) – (iii)). Section 103B(2)(d) provides that a caution in respect of an offence within Schedules 3 or 5 to the Sexual Offences Act is sufficient for the purpose of bringing a Sexual Harm Prevention Order application.

The purpose of the order must be to protect a specific person from the risk of sexual harm by the defendant, or to protect children or adults generally from the risk of sexual harm by the defendant (section 103(A)(2)(b)). It must be proved that the defendant is a "qualifying defendant" and that the defendant's behaviour since the qualifying offence makes it necessary to grant an order (section 103A(3)). An application must be made by way of "complaint" to a magistrates' court by a chief officer of police or the Director General of the National Crime Agency (section 103A(4)). It is possible to have an Interim Sexual Harm Prevention Order (section 103F).

If granted, a Sexual Harm Prevention Order can last for a fixed period of time, not less than 5 years, or until further order (section 103C(2)). The Sexual Harm Prevention Order prohibits the defendant doing anything prescribed by the order (section 103C(1)). The only prohibitions that may be included within the order are those that are necessary to protect a specific child or adult, or to protect children or adults generally (section 103C(4)). In R v Smith [2011] EWCA Crim 1772, the Court of Appeal confirmed that the order may not be oppressive and must be proportionate to the offence committed.

The Law – Sexual Risk Orders
The Sexual Risk Order replaced the Risk of Sexual Harm Order (ss.122A-122K Sexual Offences Act). To apply for a Sexual Risk Order, the only condition is that the defendant must have "done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made" (section 122A(2)). There is no need for a prior conviction or caution. Any application must be made by way of "complaint" to a magistrates' court by a chief officer of police or the Director General of the National Crime Agency (section 122A(1)). The court will only make such an order if satisfied that the defendant has done an act of a sexual nature which makes it necessary for an order to be made to protect an individual or the public from harm from the defendant (section 122A(6)). If granted the Sexual Risk Order will last for a fixed period, not less than 2 years, or until further order. The only prohibitions that may be included within the order are those that are necessary to protect a specific child or adult, or to protect children or adults generally (section 122A(9)).

Application to the current proceedings
It is important to consider the application of each of the above to the current proceedings. Firstly, a Child Abduction Warning Notice has no statutory or legislative derivation. It cannot be applied for. It is simply a clerical mechanism which will often provide the first step in building a case to prosecute. In the present case, the police were well aware of the allegations made by P and other teenage girls. The charging decision against D will be made later in 2016. It is not known whether a Child Abduction Warning Notice is in place against D, although it is hoped that one is. Importantly however, it does not provide an answer to the circuit judge's central question as to what injunctive relief was available to her in order to prevent D from committing further child sexual exploitation offences.

Secondly, in order to apply for a Sexual Harm Prevention Order, the defendant must have committed a "qualifying offence". This is a sexual or violent offence contained within Schedule 3 or Schedule 5 to the Sexual Offences Act. A caution of such an offence is sufficient for the purposes of this section. In the present case, D has not been cautioned or even charged with an offence found in Schedule 3 or Schedule 5. There have been a number of evidential difficulties which have meant that the charging decision will be made later in 2016. In addition, any application under section 103A Sexual Offences Act must be by way of "complaint" to a magistrates' court by a chief officer of police or the Director General of the National Crime Agency. Clearly, a Sexual Harm Prevention Order was of no help in answering the Circuit Judge's question as to what injunctive relief was available to her.

Thirdly, in order to apply for a Sexual Risk Order, there does not need to be a "qualifying offence". To apply for a Sexual Risk Order, the only condition is that the defendant must have "done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made". It would, on the face, seem entirely possible for an application to be made against D for a Sexual Risk Order. The police were aware of the allegations, and there was evidence, including P informing her teacher directly, that D and P were regularly engaging in sexual activity. Once again however, any application under section 122A Sexual Offences Act must be by way of "complaint" to a magistrates' court by a chief officer of police or the Director General of the National Crime Agency. In the present case therefore, a Sexual Risk Order did not provide a legal vehicle through which she could grant injunctive relief to prevent future child sexual exploitation by D.

Most importantly, the circuit judge was critical of the manner in which the police had handled the case. Indeed, the Guardian indicated to the court that she would write a letter of complaint and the judge endorsed this. What is apparent is that a Child Abduction Warning Notice, Sexual Harm Prevention Order and Sexual Risk Order all require direct action by the police. In the present case, a major concern was in relation to the inaction of the police. Clearly, the circuit judge was hoping to grant injunctive relief against D without relying on police action. Unfortunately, none of the above furnished the Judge with an answer as to the type of injunctive relief available to her.


Option 4: Ward of the Court 

The Law
Section 100 of the Children Act 1989
is the starting point for any wardship proceedings. In order to rely on the court's inherent jurisdiction under section 100, leave must firstly be obtained (section 100(3)). The court can exercise its powers of inherent jurisdiction only if it is satisfied that there is no other order available and that there is reasonable cause to believe that the child is likely to suffer significant harm if an order is not made (section 100(4)).

The scope of the inherent jurisdiction is amorphous and undefined. As observed by Waite LJ in R v Central Independent Television plc [1994] Fam 192, 207–208:

"The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages."

Further, the Family Procedure Rules appear to impose a "duty" on the courts in relation to children who are part of proceedings. The relevant paragraphs are paragraphs 1.1 and 1.2 of Practice Direction 12D—Inherent Jurisdiction (Including Wardship) Proceedings:

"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."

The extent to which the inherent jurisdiction can and should be invoked to prevent child sexual exploitation is debated. There have been two recent decisions exactly on point and these two decisions appear to be at odds with one another.

Firstly, in Birmingham County Council v Riaz [2014] EWHC 4247 (Fam), Keehan J observed at paragraph 46 that:

"I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent child sexual exploitation ('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."

Riaz concerned a teenager who had repeatedly placed herself in situations of grave risk. Police intelligence before the court reported that she was performing sexual acts in exchange for cigarettes and cannabis and had been seen on videos using cocaine and performing sexual acts on Asian males. Civil injunctions were granted in respect of ten adult Asian men in order to prevent them engaging in the sexual exploitation of a particularly vulnerable 17-year-old girl, and of other vulnerable young females.

At paragraph 158 of his judgment, Keehan J concluded that:

"All too often in such cases the only action taken by the authorities, where there is insufficient evidence to mount a prosecution, is in respect of the victim. They are invariably taken into care or, in more extreme cases, they are placed in secure accommodation as was the case with AB. 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."

Clearly, Keehan J was firmly of the opinion that there was nothing in section 100 of the Children Act that curtailed his inherent jurisdictional powers, and that the child was at risk of significant harm if an order was not granted, preventing her continued sexual exploitation by 10 males.

Secondly, in Redbridge London Borough Council v A [2015] EWHC 2140 (Fam); [2015] Fam. 335 at a fact-finding hearing during care proceedings a judge found that a man had systematically groomed one of his step-daughters from a very young age, eventually raping her. Although the step-daughter was subsequently protected by injunctions made under the Family Law Act 1996 the local authority, perceiving the man to present a sexual risk to vulnerable girls generally, applied under section 100(3) of the Children Act 1989 for leave to apply to the High Court to exercise its inherent jurisdiction with respect to children by making an order to restrain the man from contacting, approaching, seeking or being in the company of, or residing in the same home as, any female under 18 years of age.

On refusing the application, Hayden J held that the inherent jurisdiction of the High Court to protect or further the interests of a child, which was to be used sparingly and with extreme circumspection, was exercisable only in relation to an identified or known child who was the subject of proceedings; that the framework within which children at risk of sexual exploitation were to be safeguarded and protected was properly a matter for Parliament to create and the courts to enforce; and that, accordingly, the injunctive relief sought by the local authority, relating as it did to unidentified female children, was outwith the powers of the court.

Hayden J concluded at paragraph 45 that:

"Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf of the Redbridge London Borough Council is outwith the scope of this court's powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in Birmingham City Council v Riaz [2014] EWHC 4247 (Fam), [2015] 2 FLR 763."

In addition, Hayden J stated at paragraph 46 that:

"Serendipitously, at least for the purposes of my analysis, Parliament has now amended Parts 2 and 3 of the Sexual Offences Act 2003 by the Anti-social Behaviour, Crime and Policing Act 2014. Section 122A (as inserted by section 113 of and paragraph 4 of Schedule 5 to the 2014 Act) provides for the making of sexual risk orders ("Sexual Risk Order") and outlines the grounds on which they may be obtained and their effect."

At the time of Riaz, Hayden J noted that "[w]hen Keehan J heard the arguments in the Riaz case these provisions had not come into force and accordingly, the protection that they offer was, at that stage, not available". Indeed, Hayden J concluded that the criminal court was the correct venue to consider making these orders, and that it extended beyond the remit of the inherent jurisdiction of the family court to make such an order.

These competing authorities were most recently considered in Birmingham City Council v SK [2016] EWHC 310 (Fam). Keehan J noted, at paragraphs 13 to 17, that there is an evident conflict between the authorities. However, his Lordship stated:

"15. It became apparent, however, during the course of oral submissions that in the absence of the local authority seeking an injunction against any individual to protect SK from sexual exploitation, that the legal arguments on this important issue had become academic. The court's determination of those arguments would not have any bearing on the orders the court would or would not make on the local authority's application for permission to withdraw the application for an injunction. 

16. Accordingly, in light of the decision of the Court of Appeal in Re X (Court of Protection) [2015] EWCA Civ 599, I could not properly express a concluded view between the competing decisions in Riaz and Redbridge."

The conflict in authorities is therefore yet to be resolved.

Application to the current proceedings
It appears than that there is a conflict between Riaz and Redbridge. Hayden J openly accepted that his judgment was at odds with that of Keehan J. However, at the present time both cases remain good law. The one notable point of distinction is that in Riaz, the case related to an identifiable victim and identifiable perpetrators. In Redbridge, the application was for an extremely broad injunction to be imposed on an individual preventing any contact with unidentified females – indeed, any female under 18. It therefore appears that the two cases can, at least in some respects, be reconciled with one another. If the parties are identifiable, Riaz appears to be applicable. If the parties are not identifiable, Redbridge applies.

The bigger problem, however, is the Hayden J went beyond this. His Lordship opined that the correct venue for this type of application was the criminal courts, by utilising the legal vehicle created under section 122A Sexual Offences Act – namely a Sexual Risk Order. If this is accepted, regardless of whether or not the parties are identifiable, injunctive relief should be limited to the criminal courts in cases of child sexual exploitation, where the child does not wish to make an application for injunctive relief.

Herein lies the problem. Any such application must be by way of "complaint" to a magistrates' court by a chief officer of police or the Director General of the National Crime Agency. In the present case, there was significant concern regarding the apparent inaction of the police. In these circumstances, it is submitted that the court would be reneging on its "duty" to ensure that children in proceedings are properly protected. Injunctive relief under section 100 would allow injunctive relief in a manner which circumvents the need to rely on police action.

On the facts of this case, D is an identifiable perpetrator and P is an identifiable victim. Riaz is still good law and should therefore be applied, given that it is markedly more similar in terms of facts that Redbridge. In addition, in a case where there are significant concerns relating to the inactivity of the police, it would seem wholly wrong to rely on immediate police action to ensure the safety of P.

One further problem however is that the circuit judge in the present case could not sit as a Deputy Judge of the High Court as per section 9 Senior Courts Act. As such, the circuit judge in the present case had no facility to utilise the inherent jurisdiction of the High Court. Unfortunately then, in answering the question "what can I do to help these girls? What injunctive relief is available to the court?" the answer is nothing and none. The circuit judge was unable to utilise any weapon within the armoury of court powers. All that the circuit judge was able to do was notify the designated family judge that an urgent application would be made as soon as possible which would require the potential invocation of the inherent jurisdiction. This was also to be recorded as a recital on the order.


Conclusions

In conclusion, the circuit judge was powerless to protect P from further child sexual exploitation by D. The only route available to the family court, if one accepts the judgment in Riaz, would be to rely on the inherent jurisdiction of the court under section 100 of the Children Act. If the judge cannot invoke that jurisdiction, as in the present case, the family courts are impotent. Indeed, if the judgment of Hayden J in Redbridge is preferred, the family courts are powerless in any event as these orders are outside the scope of the inherent jurisdiction and should be dealt with in the criminal courts. The result then is that an uncomfortable lacuna exists within the law in which, despite the extensive powers of the family courts, there is not a single weapon within the arsenal to protect vulnerable children from child sexual exploitation, when the child themselves refuse to seek injunctive relief.

4/5/16