A child had been made the subject of non-molestation injunctions, which extended to her mother, while she was a ward of court. As the child approached her 18th birthday, the mother applied to court for an extension of the injunction to extend indefinitely beyond the conclusion of the wardship proceedings.

O v P: Family Division: 1 April 2015

Orders in family proceedings – Non-molestation order – Continuation after conclusion of wardship – Child being ward of court – Court making non-molestation injunctions to protect child and mother from father

S was born in April 1997. In 1999, her father abducted her, took her to Australia, and retained her there unlawfully until she was recovered and returned to her mother, pursuant to proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.

He was subsequently convicted in Australia on two occasions of offences of incitement to solicit the murder of S’s mother. At the time of the present proceedings, he was still serving his sentence with an estimated release date of March 2018. He continued to deny the offences and had sought, unsuccessfully, to challenge the validity of his convictions. As a consequence of those events, S was the subject of wardship proceedings and proceedings under the Children Act 1989, initially under section 8 and then under schedule 1.

As a consequence of the wardship proceedings, S was made a ward of court and a series of non-molestation injunctions were made. Since then, the mother and S had moved to Australia. During the financial relief proceedings, the mother gave evidence as to the life that she and S led in fear of the father (see [2014] All ER (D) 291 (Jul)). As S approached her eighteenth birthday, the mother applied to the court for an extension of the injunction to extend indefinitely beyond the conclusion of the wardship proceedings.

The issues for determination were: (i) whether any modified orders made before the expiration of the wardship could be extended beyond S’s 18th birthday; (ii) if not, whether orders thereafter could be made in any event, pursuant to the court’s inherent jurisdiction or at common law; and (iii) whether the fact that S and her mother were habitually resident in Australia was fatal to the exercise of the court’s jurisdiction. Consideration was given to articles 2, 6 and 8 of the European Convention on Human Rights (ECHR).

The application would be allowed.

An order made during the currency of wardship proceedings might be extended following the 18th birthday of the child or young person. Where a court had ruled that a young person was at risk of harm, and had granted an injunction to protect her from that risk, it had to have the power, as part of the protective measures available in wardship and under the inherent jurisdiction generally, to extend that protection beyond the young person’s 18th birthday.

The origins of wardship lay in the parens patriae role of the Crown. In some cases, young people needed continuing help and protection beyond their 18th birthdays. In such circumstances, parents continued to exercise responsibility, and the court, under its inherent jurisdiction, had to be prepared to do so if required. The jurisdiction extended to protect vulnerable young people whether or not they lacked capacity.

The ECHR had reinforced that obligation. The court was a public authority and, when exercising its jurisdiction in wardship and under the inherent jurisdiction, it had to have regard to articles 2, 6 and 8 when making orders that were needed to protect young people who fell within its jurisdiction.

When the court had jurisdiction at the start of wardship proceedings on the grounds that the child was habitually resident in England and Wales, that jurisdiction continued until the conclusion of the proceedings, notwithstanding the fact that the ward had become habitually resident elsewhere. In addition, the court might have jurisdiction on the grounds that the ward as a British national. In either case, the question was whether it was appropriate to exercise the jurisdiction in the particular circumstances of the case (see [27] of the judgment).

In the present case, the court had jurisdiction for the making of the orders sought by the mother. To require either S or the mother to make an application for protective relief in Australia exposed both of them to the very risks which the present court’s orders had been designed and intended to avoid. Having regard to the history and the evidence at the financial provision hearing, there was no doubt that S and the mother remained at very great risk from the father.

Although, at the time of the present hearing, the direct threat had been towards the mother, it was plain that S remained at risk of emotional harm as a result of that threat. It was imperative that the court made the order within the wardship jurisdiction, or alternatively, under its inherent jurisdiction to protect vulnerable adults, extending that protection beyond S’s eighteenth birthday. In the circumstances, it was essential that, in order to ensure the protection was extended for S, the mother was also kept within the ambit of the injunction (see [27], [28] of the judgment).

A (children) (jurisdiction: return of child), Re [2014] 1 All ER 827 followed; P (GE) (an infant), Re [1964] 3 All ER 977 applied; F (adult: court’s jurisdiction), Re [2000] 3 FCR 30 applied; SA (vulnerable adult with capacity: marriage), Re [2007] 2 FCR 563 applied; Hope v Hope (1854) [1843-60] All ER Rep 441 considered; P (minors) (wardship: surrogacy), Re [1988] FCR 140 considered; E, Re [1990] FCR 793 considered; Al Habtoor v Fotheringham [2001] 1 FCR 385 considered.

Stephen Lyon for the mother. The father appeared by way of written submissions.