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Re T (A Child: Murdered Parent) and Injunctions in the Family Courts

Andrew Willetts, Barrister, of King’s Bench Chambers, Plymouth, considers the recent case of Re T (A Child: Murdered Parent) and the court’s injunctive powers to protect children from a non-resident parent.

Andrew Willetts, Barrister, King's Bench Chambers

In a recent decision handed down in the case of Re T (A Child: Murdered Parent) [2011] EWHC B4 (Fam) the High Court had to consider whether it had the power to make an injunction order against a father to mirror his conditions of release from psychiatric care imposed by the First Tier Mental Health tribunal ('the tribunal'). Following his release the father had applied to the court for a contact order in respect of his eight year old daughter. The application was made a little more than four and a half years after his conviction for manslaughter of the mother and assault of the maternal grandmother, both on grounds of diminished responsibility.

The father had been diagnosed with paranoid schizophrenia and was a restricted patient within the meaning of ss41 and 79 of the Mental Health Act 1983. The child had been subsequently placed with her maternal aunt who was granted a special guardianship order following care proceedings. Whilst the tribunal had concluded that the father was now sufficiently 'low risk' to be discharged from residential psychiatric care into the community it had nevertheless imposed seven conditions, two of which were particularly unusual and highly pertinent to the case. These were:

"5. The patient shall be excluded from the area shown on the plan annexed hereto, namely, the area within a 25 mile radius of [the child's home] save that, with the prior authorisation of his social supervisor, he may travel by train or bus to [Z town] to visit his brother's home provided he does not travel through [Y town] in order to do so…

7. The patient shall not attempt to contact or communicate with any member of the [maternal] family including his daughter…" 1

The father's application under s8 of the Children Act 1989 for a contact order was opposed by the special guardian and after a hearing before His Honour Judge Bellamy, sitting as a judge of the High Court, the father's application was dismissed. Significantly the judge also made an injunction order including an exclusion order and a prohibition on any contact between the father and the child and the maternal family, mirroring conditions 5 and 7 imposed by the tribunal. In what the judge described as "the exceptional circumstances of the case"2  the court made the injunction order of its own motion without any formal application having been made.

The judge determined that the court could make such an order from its inherent jurisdiction and pursuant to the s42 Family Law Act 1996 (Non-Molestation Orders) ('FLA') and that an exclusion order could be made notwithstanding the absence of such a specific provision within the FLA when occupation orders do not apply. The case of C v K (Inherent Powers: Exclusion Order) [1996] 2 FLR 506 and the recent judgment by Sir Nicholas Wall, the President of the Family Division, in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam) were cited as authority for this approach. The court also made a s91(14) direction.

The Dilemma
When the father's application came before the court the judge appointed a NYAS caseworker to act as the child's guardian ad litem. The guardian's conclusions were clear that the child did not want to see her father and that, if forced, contact could destabilise the child's settled home environment. The maternal aunt and maternal family strongly opposed any contact and sought the additional protection of a s91(14) direction until the child's 16th birthday. Significantly the judge did however confirm that the father's right to make such an application remained unfettered however horrific his conduct:

"Whatever may be the twenty-first century equivalent to the proverbial man on the Clapham omnibus, he or she would likely be very surprised to learn that a parent who has murdered the other parent should nonetheless be entitled to make an application for contact with his child and even more surprised to be told that the court will not dismiss that application out of hand. However, I am satisfied that that is the position in law."3

After hearing evidence the judge was persuaded that it was not in the child's best interests to have contact with her father and made a s91(14) until the child's 16th birthday. Having disposed of the father's application on its merits, the judge remained concerned that the father's conditions of release into the community did not provide sufficient protection to the child or the maternal family in the event of any relapse in his mental state.

Indeed the only sanction that can be imposed for breach of such a condition is recall to hospital and this is exercisable only at the discretion of the Secretary of State4. Moreover it was noted that the decision whether or not to invoke such a power is subject to a wide discretion. The judge put it thus:

"The Secretary of State is not obliged to recall a patient to hospital in response to breach of a condition. Recall is discretionary and will depend upon the circumstances. It follows, therefore, that in the instant case breach of the conditions not to go within 25 miles of [the child's home] and not to contact [the child] or members of the maternal family would not necessarily give rise to a decision to recall to hospital." 5

The judge was clearly less than convinced that the tribunal's conditions actually offered any real or tangible protection. He said:

"…the need to give reassurance to [the maternal aunt] and the children that the conditions imposed by the Tribunal really are intended for their continuing protection is, in my judgment, clear. For the reasons outlined earlier, I am satisfied that in their present form the protection provided by the conditions is, in truth, illusory. What is needed is an order of the court. This would give [the maternal aunt] the reassurance that she would have the right to bring the matter back before the court in the event of breach." 6   

Non-Molestation Orders
The question was therefore what 'order' could the court actually make to give 'teeth' to the tribunal's conditions. In part the answer was contained in s42 FLA.  Under this provision the court has the power in any family proceedings to make a non-molestation order by its own motion7. The test is a relatively simple hurdle to overcome. The person to be protected by such an order must be either "associated" with the respondent or a "relevant child". The meaning of 'relevant child' is so wide as to include any child whose interests the court considers relevant8. An 'associated' person is defined under s62 (3) (d) of the FLA to include "relatives". However 'relatives' are also widely defined under s63 so as to include both paternal and maternal extended family whether or not the parents were married. As to whether such an order should be made on the facts of the case the test under the FLA is simply, having regard to all the circumstances of the case, the need to secure the health, safety and wellbeing of the associated person or relevant child9.

On the granting of an exclusion zone however these provisions are silent. In fact no mention of such a remedy is made under this section. The term 'molestation' itself remains somewhat of an enigma. However, significantly the judge said this:

"The word 'molestation' is not defined in the Act but has been given a broad interpretation by the courts. In C v C [1998] 1 FLR 554, for example, Sir Simon Brown P said that the word molestation "implies some deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court'. Depending upon the context, to describe as 'molestation' the act of going within a defined radius of a particular location does not seem to me to exceed the ambit of the meaning of that word...In this case there can be no doubt of the need to secure the health, safety and well-being of [the child and immediate maternal family]. That is precisely the purpose of the proposed exclusion zone order." 10

The added benefit of an order under s42 is that by reason of s42A(1) breach is treated as a criminal offence and as an arrestable offence punishable by up to five years imprisonment. In this way the court by making an order mirroring the tribunal's conditions moved enforcement away from the Secretary of State and placed it in the hands of the police.

Inherent Jurisdiction
The judge acknowledged that even if he was wrong in his interpretation of the FLA he could and should invoke the court's inherent jurisdiction.

"However, if my construction of the Family Law Act 1996 is too wide then I am satisfied that I have the power to make the same order under the High Court's inherent jurisdiction for the protection of children and/or under s.37 Senior Courts Act 1981" 11

The judge went on to cite a 1996 decision of Wall J (as he then was) in C v K. This case concerned the power to exclude a person from his home notwithstanding that he had a proprietary interest in the property. Wall J had identified eight propositions that were of material consideration in cases such as that. Whilst in the present case the father had never had any such interest in the property where the child was now living, the judge nevertheless was able to extract three principles which were considered to be of "particular relevance";

"(2) Leaving on one side the parens patriae jurisdiction of the High Court over children who are specifically its wards, there exists an inherent jurisdiction in both the High Court and the county court to protect children from harm which is exercisable irrespective of the proceedings in which the issue of the need to protect the children arises.

(3) There is a co-existing jurisdiction given in the High Court by s37 of the [Senior Courts Act] and in the county court by s38 of the County Courts Act to grant injunctive relief in support of legal and equitable rights.

(4) The powers exercisable under ss37 and 38 of the respective statutes may be invoked in support of the rights and duties conferred on a person by a residence order [or special guardianship order]. Thus, in cases where neither the Matrimonial Homes Act 1983 nor [Part IV Family Law Act 1996] applies, a non-residential parent may be restrained from interfering with the residential parent's exercise of parental responsibility. The powers of the court in this context extend to orders against molestation and to ouster injunctions." 12

The court was therefore of the view that it could make an exclusion order so as to protect the child from likely harm. The judge was further convinced of this by the more recent decision of Sir Nicholas Wall (now President of the Family Division) in CW & Ors v. TW & Ors handed down on 18th January 2011. In this case it was recorded that at an earlier hearing the President had "made an order banning [a non-resident parent] from the County of Wiltshire save for specified purposes"13  and which was renewed at a later hearing.

The significance of these cases is that where occupation orders under s33 of the FLA (which specifically includes the power to grant exclusion orders14) are not engaged the court can nonetheless make orders which have achieve the same outcome albeit by a different route.

Section 91(14)
Whilst not actually an injunction this order does, in many ways, reflect similar characteristics. Often described as a 'weapon of last resort in cases of repeated and unreasonable applications' it is a sanction meant to be used sparingly (Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 per Bulter-Sloss LJ).  In the present case there was no history of vexatious applications, indeed this was the father's first and only application for contact since his release. However the obvious distress that the application was causing for the maternal family and the peculiar fact that the maternal aunt was not eligible for public funding (whereas the father had been until the Legal Services Commission had revoked his certificate) conspired to create a very unbalanced position. In granting such an order to last until the child's sixteenth birthday the judge noted, inter alia, the following to justify his decision:

"(i) The ongoing trauma suffered by this family ever since [Mother's] death as a result of a succession of investigations, some held in public, the substantial media interest in their story and their need for relief from being in the spotlight.

(ii) The fact that such a further application would catapult the family into yet another prolonged period of involvement in court proceedings which would likely include meetings with [their] legal team, with [the Child's] guardian ad litem…in addition to attendance at court hearings.

(iii) The fact that [the maternal aunt] is not financially eligible for public funding…The expense of legal representation is an additional pressure on her family." 15

Whilst again citing the 'exceptional circumstances' of the case the judge went on to qualify this decision:

"In arriving [at this decision] I bear in mind that this order does not deprive [Father] of access to the court but simply imposes a filter which would require the court to consider the factors set out in s10 (9) [leave to apply for a section 8 order] in deciding whether to grant leave for any future application to proceed." 16

There is no doubt that Re T was a very unusual case but the principles that can be taken from it are of a more general application. The court has reaffirmed its power to grant injunctions to protect children and their carers from the risk of interference from a non-resident parent. It is clear now that the courts can and should always be ready to make injunction orders to strengthen existing safeguards and even mirror orders made in different legal jurisdictions. There equally can now be no justification for courts not making such orders simply because no 'formal' application has been made.

Moreover, when consideration is being given to the making of such an injunction or a s91(14) direction, the court shall consider, in addition to the more established criteria, the enforceability and effectiveness of any existing orders for the former, and the relative financial means of the parties to bring or defend future applications in the case of the latter.


The author acted for the guardian ad litem, NYAS, in Re T (A Child: Murdered Parent).

1 Re T (A Child: Murdered Parent) [2011] EWHC B4 (Fam), para 31
2 Ibid para 83
3 Ibid para 60
4 S42 (3) of the Mental Health Act 1983.
5 Re T (A Child: Murdered Parent) [2011] EWHC B4 (Fam), at para 57.
6 Ibid at para 77
7 FLA s42 (2) (b).
8 Ibid s62 (2)
9 Ibid s42(5)
10 Re T (A Child:Murdered Parent) [2011] EWHC B4 (Fam), at para 80.
11 Ibid at para 81
12 Ibid at para 81.
13 CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), at para 4.
14 See FLA s33 (3) (g).
15 Re T (A Child: murdered parent) [2011] EWHC B4 (Fam) at para 72.
16 Ibid at para 73.