Nathalie El-Korashy, an Associate Solicitor at QualitySolicitors Harris Waters and Melanie Johnson, Counsel from 1 Pump Court Chambers, acted for the Respondent, SNA, in the case of London Borough of Redbridge v SNA  EWHC 2140 (Fam) which was reported on 21st July 2015. A summary of the case is as follows:
Following previous care proceedings in which the Court made findings of sexual abuse and violence against SNA, the London Borough of Redbridge made an application to invoke the inherent jurisdiction of the High Court to protect vulnerable youngsters in their borough from SNA, whom they perceived to present a sexual risk. The orders focused on “any female under 18 years of age.” The Local Authority sought to rely on the judgment of Keehan J in Birmingham City Council v Sarfraz Riaz and Others [2-14] EWHC 4247. In that case, the Court noted that the Local Authority may not apply for any order under the inherent jurisdiction without first applying for leave of the Court under s100(4) Children Act 1989, as well as the facilitative provisions of the Family Procedure Rules which emphasise the inherent jurisdictional powers as imposing a “duty” on the Court to protect children who are subject to proceedings. The Judge, Keehan J, came to the following conclusion in the Birmingham case:
“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.”
It was not accepted by the Respondent in the present case that the reach of the inherent jurisdiction goes as far as the Court concluded it in the Birmingham case. It was submitted that there was a flaw in the legislation and therefore it contemplates the inherent jurisdiction’s powers extending to classes of unnamed unidentifiable individuals.
In the present case, the Court concluded that the Local Authority’s application for injunctive relief was outside the scope of the Court’s powers whilst at the same time acknowledging that Parliament now has relevant legislation by amending parts 2 and 3 of the Sexual Offences Act 2003. Previous undertakings made by the Respondent were subsequently discharged by the Court.
This decision is important because the Courts have set out the limits of the inherent jurisdiction and have found that the Court cannot make orders against unspecified children or vulnerable adults. Given the same, the undertakings that SNA was previously invited to give did not fall within the framework of the inherent jurisdiction and were subsequently discharged.
This decision is also important because the Court recognised that the Criminal Courts now had powers to make Sexual Risk Orders (SROs) under the Sexual Offences Act 2003. This was not available at the time that the Birmingham City Council v Sarfraz Riaz and Others [2-14] EWHC 4247 case was decided.
The importance of this case for future cases means that unless an Applicant clearly specifies which children or vulnerable adults it seeks to protect, any orders sought will be outside the Court’s powers to offer injunctive relief. The Applicant should also consider whether, as in this case, there are already protective orders in place, as well as considering whether the police should apply for a Sexual Risk Order from the Magistrates’ Court.
For the average person, this case illustrates that the powers of the High Court under the inherent jurisdiction are not limitless and Respondents are now able to successfully challenge similar applications.
This was the first time that I have worked on an application for a protective order, where the orders sought by the Applicant were so widely drafted and specific individuals are not named, as opposed to an application made under the Part IV Family Law Act 1996, s3 Protection from Harassment Act 1997 or s8 Children Act 1989. I found it particularly interesting researching and noting the differences between this and the Birmingham case, including the changes in Criminal Law and the powers of the Magistrates Court to now grant SROs.
Given the decision in the Birmingham case, which was a landmark case, and the fact that SNA was previously invited to offer undertakings to the Court in these proceedings, there was of course a possibility that the Court would have granted the orders sought by the Applicant Local Authority. However, the Court accepted the submissions made on behalf of SNA and as a result, the Local Authority’s application was successfully challenged, resulting in the decision that the inherent jurisdiction of the High Court’s domain does not include the protection of the unidentified wider public.