This case involves an appeal concerning the extent to which a family court may exercise its jurisdiction to grant a non-molestation injunction under the Family Law Act 1996 to protect a child subject of a full care order: T (A Child)  EWCA Civ 1889.
A care order was made on a child, a girl now aged 10 years. The child has been cared for by the same foster parents since 2013. Prior to being placed with her present foster carers, the child had had to be moved from two previous foster homes because of the actions of her mother, supported by Mr JM who has a significant and ongoing criminal record involving offences of serious violence.
The child’s mother and her partner, Mr JM, never accepted the validity of the care order and had made serious attempts to abduct the child from her carers; one such attempt formed one of the grounds upon which the threshold criteria for s.31 (Children Act 1989) were satisfied at the time that the original care order was made. Criminal proceedings followed and the mother was convicted of an offence of conspiracy to abduct the child for which she received an 18 month prison sentence in 2013.
The local authority was granted an injunction on 31 March 2017 restricting the geographical movements of the mother and Mr JM. Judge Furness. The Judge was satisfied that the mother and Mr JM’s conduct was ‘positively harmful’ to the child and, if continued, would be likely to cause significant harm.
It was not possible, however, to obtain a power of arrest to support any injunction granted and so the local authority facilitated an application by the child’s foster parents for a non-molestation order under the 1996 Act. Concern was to establish a clear power for the police to arrest the mother and/or Mr JM in the event of any breach of injunction.
Despite manifest concerns as to the activities of the mother and Mr JM, and a clear finding that the child was likely to suffer significant emotional harm if the mother and Mr JM’s conduct continued, the Judge rejected the local authority’s invitation to make a non-molestation order.
Outcome of the appeal
Extract from the judgement by Lord Justice McFarlane:
- Although the judge is a most experienced family lawyer and judge, I am clear that his conclusion was made in error. There is no requirement in either the 1996 Act or the case law for there to be some direct interaction between the respondent and the applicant or child in order to establish the basis for granting a non-molestation order. The judge’s finding that the mother and Mr JM’s conduct was ‘positively harmful’ to the child and, if continued, would be likely to cause significant harm, was more than sufficient to justify exercising the powers under s. 42. The impact on the child’s life of the mother and Mr JM’s conduct, as described by the foster carers and as found by the judge, plainly amounts to harassment and, as the judge held, applying the s. 42(5) criteria, makes the granting of an order clearly necessary. Where, as here, a judge has held that the child’s very placement with the foster carers was threatened by the actions of this ‘desperate’ mother, it was in my view, erroneous to hold that the court lacked jurisdiction to make a non-molestation injunction.
- It follows that, if My Lords agree, the appeal must be allowed.
- On the basis of the very clear findings made by the judge, and on the basis that it is plain that he considered the granting of an injunction as being a ‘necessity’ as against the s. 42(5), only holding back from doing so because of an erroneous (as I have held) view of the law, there would seem to be no merit in this court now referring the case back to the High Court for a re-hearing. We are in as good a position as the judge to re-determine the issue and, as only one outcome is justified on the facts as found, I would grant a non-molestation order against the mother and Mr JM.
Lord Justice McFarlane delivered the leading judgment in respect of the appeal and granted the non-molestation order.
Read the full judgement: Re T (A Child)  EWCA Civ 1889