H, Re [2000] EWCA Civ 414 (30 November 2000)


Royal Courts of Justice
London WC2A 2LL

Thursday, 30th November 2000

B e f o r e :

(Dame Elizabeth Butler-Sloss)




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____________________MR NJ O’BRIEN (instructed by TV Edwards, London E1 4TP) appeared on behalf of the Applicant
MRS L FLEISCHMANN (instructed by McCormacks London E1 4YS) appeared on behalf of the Respondent



Crown Copyright ©

Thursday, 30th November 2000

    1. LADY JUSTICE HALE: The issue in this appeal is a simple one. Can or should a court attach a power of arrest to an occupation order made under Part IV of the Family Law Act 1996 when the respondent is aged under 18? The same question would also arise in relation to a non-molestation order.
    2. This is the respondent’s appeal against the order of His Honour Judge Sleeman made in the county court jurisdiction of the Principal Registry of the Family Division on 8th June 2000. He ordered the respondent to vacate the property named by 4.00pm on Friday, 16th June 2000 and not to return to the property or to enter or attempt to enter the property. The property was the home of the respondent’s parents and his three-year old sister. The judge also ordered that there be a power of arrest attached to that order and that both stay in force until 8th December 2000.
    3. The applicant is the respondent’s father. The respondent was at the time aged 17 years and three months. His behaviour towards his parents and in the home was totally unacceptable. The judge made a series of findings of fact upon allegations of violent and abusive behaviour towards both the applicant father and the mother. The judge described that behaviour as despicable. It was accepted by the Official Solicitor as the litigation friend of the respondent that if an adult had so behaved there would be ample justification for an occupation order.
    4. On 15th June 2000, the day before the respondent had to vacate the property, I refused permission to appeal against the occupation order itself. The Official Solicitor does not renew any application for permission to appeal against that order. I did, however, grant permission to appeal against the power of arrest although I refused a stay of execution.
    5. It appears that the respondent son was arrested pursuant to the power of arrest ordered on 8th June and was brought before Her Honour Judge Pearlman on 17th July 2000. She made a further occupation order, together with an order not to go within a distance variously described as 1 kilometre or 1 mile of the property, and attached a further power of arrest, again to last until 8th December this year.
    6. The power of arrest was attached under section 47(2) of the Family Law Act 1996. This reads as follows:

“If –

(a) the court makes a relevant order; and

(b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.”

    1. The principal ground advanced in the grounds of appeal was that the court cannot attach a power of arrest where the respondent is a minor. The subsidiary ground of appeal was that in this case the judge should have been satisfied that the applicant and the young child would be adequately protected without it, because the police had previously shown themselves willing to attend the premises and arrest the son for breach of the peace.
    2. The argument, in essence, is that the power of arrest is a prelude to the exercise of the court’s power to punish for contempt of court. The difficulty that arises where contempt of court is committed by a minor is that there is little or no sanction available for the court to impose, once the matter is brought before it. Attention was drawn to that problem in the well known case of Wookey v Wookey; Re S (A Minor) [1991] Fam 121, CA in which it was held that a non-molestation injunction under the previous law was not appropriate because there was no realistic method of enforcing it in the circumstances.
    3. That position arises because section 1(1) of the Criminal Justice Act 1982 provides:

“Subject to subsection (2) below, no court shall pass a sentence of imprisonment on a person under 21 years of age or commit such a person to prison for any reason.”

    1. That was held to apply to the magistrates’ power to deal with contempt, in R v Selby JJ ex parte Frame [1992] QB 72, DC. Clearly it is meant to apply to imprisonment for contempt. Section 9(1), of the 1982 Act provides:

“In any case where, but for section 1(1) above, a court would have power –

(a) to commit a person under 21 but not less than 18 years of age to prison for default…; or

(c) to commit such a person to prison for contempt of court or any kindred offence, the court shall have power, subject to section 1(5) above, to commit him to be detained under this section…”

    1. The age limit was raised from 17, as originally provided in the 1982 Act, to 18 by the Criminal Justice Act 1991. Therefore this young man could not be detained were he to be brought before a court to be punished for contempt.
    2. There is a provision in the Contempt of Court Act 1981 section 14(2A), inserted by the Criminal Justice Act 1982, which prohibits the making of an attendance order in the case of jurisdiction to commit for contempt of court or any kindred offence if it appears to the court that the person is under 17 years of age. That provision has not been amended by the Criminal Justice Act 1991 so as to raise the age of 17 to 18. However, we are told that there are practical problems in imposing attendance centre orders, in that section 17(1) of the 1982 Act requires the Secretary of State to have notified the court that there is an attendance centre available for reception of persons of the description of the person concerned. We are told that that notification has not been received by civil courts and so, in practice, this provision cannot be used. It is of course possible to impose a fine, and that would depend upon whether or not the young person has any resources; and section 14(4) of the Contempt of Court Act makes it possible to make orders under the Mental Health Act 1983 and there is a power to remand for reports for that purpose: see section 14(4A) and also section 48 of the 1996 Act.
    3. It is therefore clear that, although there are some powers to deal with persons under 18 for contempt of court, those powers are extremely limited. This is a serious gap in the law which, in my view, requires the urgent attention of those who are in charge of policy in this area.
    4. However, that does not necessarily answer the question in this case. The wording of section 47(2) is quite clear. Once the two preconditions in (a) and (b) have been made out, which they clearly were in this case, the court must attach a power of arrest to one or more provisions of the order unless the court is satisfied that in all the circumstances of the case the applicant or relevant child will be adequately protected without it. The primary argument in this case would seek to introduce an exception to that mandatory duty which is not provided for in the subsection.
    5. I should point out that the mandatory terms of the subsection were deliberately recommended by the Law Commission in its Report on Domestic Violence and Occupation of the Family Home (1992, Law Com. No.207 paragraphs 5.11 to 5.14). This was not the Law Commission’s original recommendation but it was supported by an impressive variety of respondents to the Law Commission’s consultations. Those respondents included the Magistrates’ Association, the Institute of Legal Executives, the Family Law Bar Association, the National Council for One Parent Families, the Association of Chief Police Officers and the Metropolitan Police. They also included Rights of Women, the Women’s Aid Federation and the Association of Women Solicitors. I mention that list in order to indicate that this recommendation did enjoy a very large measure of support. It was also considered with care by a Special Public Committee in the House of Lords under the Chairmanship of Lord Brightman where evidence was received and amendments to the Law Commission Bill were made: see Re B-J (Power of Arrest) [2000] 2 FLR 443, paras 5, 6 and 10.
    6. Mr O’Brien, who appears for the appellant son, is seeking to introduce into that section something which it does not contain. He argues that the protection to which it is directed is the protection provided by the power to commit for contempt of court, which does not exist in this case. For my part I am unable to accept that argument. In the first place, it is not the sole purpose of a power of arrest to provide a convenient short route to the court’s power to commit for contempt of court. That is one of its purposes and a very helpful one, but it also has the purpose of taking the person concerned away from the scene. In a case such as this, the immediate object was to ensure that the young man did indeed leave the family home and that objective can readily be secured by a power of arrest.
    7. Mr O’Brien’s second submission was that “all the circumstances of the case” in section 47(2) must include the relationship of father and son between the parties and the young age of the son compared with the mature years of the father; and that must be extremely relevant in considering the question of adequate protection. I agree with him. It will in many cases be very relevant; but that is an argument directed to whether or not the court can be satisfied as required by the subsection; it is not an argument directed to whether the court is able to impose a power of arrest at all in circumstances such as this.
    8. On the facts of this particular case Mr O’Brien does not seek to argue with any great force that it was not open to the judge to reach the conclusion that father and child would not be adequately protected without such a power of arrest. He does refer to the police’s previous willingness to attend at the premises and arrest the son for breach of the peace; but it would be difficult merely to rely on that as a guarantee of adequate protection in the future, particularly in the light of the father’s natural reluctance to pursue criminal proceedings against his son.
    9. For my part, therefore, I am unable to accept the primary case that section 47(2) should be read in such a way that it does not apply to a minor. I am also unable to accept the secondary case that this was a case where all the circumstances should lead the judge to be satisfied that father and child would be adequately protected without it. I would dismiss this appeal.
    10. LORD JUSTICE LAWS: I agree. The appellant’s primary argument entails the proposition that there exists an exception to the obligation imposed upon the court by section 47(2) of the Family Law Act 1996 for which, however, the legislature has not provided. It is quite impossible to read the subsection so that it falls to be disapplied or modified where the respondent is under 18.
    11. I would, with deference, wish to add my own emphasis to what my Lady, Hale LJ has said as to the existence of a gap in the law relating to the means of disposal available to courts in dealing with contemnors aged under 18 and, not least, respondents to orders of Part IV of the Family Law Act 1996 who are under that age.
    12. THE PRESIDENT: I agree with both judgments and that the appeal be dismissed. I would like to underline, also, the observations made both by Hale and Laws LJJ of the importance of a reconsideration of the powers and sanctions available to the court who has to deal with those under the age of 18 who may be the subject of orders to which powers of arrest are attached, and indeed more generally to young people under 18 who behave in such a way as to require protection to be granted to others both in civil and family proceedings; and I would hope that this is a matter that might, perhaps, be taken forward.

(Appeal dismissed; no order as to costs save legal aid assessment). 

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