Birmingham city council has taken an “innovative step” to protect vulnerable children from sexual exploitation, Lorna Meyer QC, counsel for the local authority, told the high court this week. It has obtained injunctions against men preventing them from approaching a specific 17-year-old girl and any other females under the age of 18.
Innovative it certainly was. But new? Hardly. The council was using laws that go back to medieval times.
For centuries, it has been accepted that the crown had the right and duty to protect children (as well as what we now call vulnerable adults). The sovereign was said to be parens patriae or parent of the nation.
By Victorian times – as readers of Bleak House will recall – there was no dispute that these powers were delegated to the lord chancellor and the judges of the chancery court. This was referred to as the court’s inherent jurisdiction. The children protected by it became known as wards of court.
Wardship could continue until a “child” was aged 21. The typical ward was a wealthy orphan – the “pretty young ward in chancery” of the lord chancellor’s song in Iolanthe. In 1971, wardship powers were transferred to the family division of the high court and the age of majority was reduced to 18.
The Children Act 1989 limited, but did not abolish, the power of local authorities to invoke the court’s inherent jurisdiction in respect of children. It can be exercised only if the child is likely to suffer significant harm and the desired outcome cannot be achieved by taking the child into care or using other statutory powers.
A leading appeal judge said in 1995 that “the wardship or inherent jurisdiction of the court to cast its cloak of protection over minors whose interests are at risk of harm is unlimited in theory – though in practice the judges who exercise the jurisdiction have created classes of cases in which the court will not exercise its powers”. Appropriately enough, that was Lord Justice Ward.
Practice directions issued by the court allow judges to make a “wide range of injunctions for the child’s protection”. These include “orders to prevent an undesirable association” as well as orders restraining publicity and orders relating to medical treatment. Wardship is part of the court’s inherent jurisdiction, but the jurisdiction may be exercised without making the child a ward.
In court on Wednesday, it emerged that Birmingham council has obtained permanent injunctions against five men and temporary injunctions against five other men. Some were in court to argue that they should not be named in public.
It’s thought to be the first time that a local authority has taken civil action in this way to protect girls under the age of 18 from being approached by men with whom they were not personally associated. If the legal action proves effective, it is likely to be adopted by other local authorities.
Unlike a criminal prosecution, using the court’s inherent jurisdiction in this way does not require the alleged victim to give evidence. Some of those who are vulnerable to sexual exploitation may not recognise themselves as victims.
On the other hand, there are concerns for the safety of those who may be identified as the subject of injunctions. At an earlier hearing, the judge asked West Midlands police to make risk assessments. The court was told on Wednesday that the police opposed any disclosure of the men’s names, because of the risk to the 10 respondents and their families as well as to others with similar names or “street names”.
That request was endorsed by counsel for two of the 10 men. One was said to fear violent reprisals from vigilantes associated with the English Defence League.
Three of the 10, who were not legally represented, maintained their innocence and said they should not be named.
Two of the 10 are in prison and were brought into court, handcuffed to security officers, shortly before the lunch adjournment on Wednesday. Sitting in the front row of the court, the prisoners said they should not be named because they had done nothing wrong.
Mr Justice Keehan was also asked to make an order protecting the identity of the 17-year-old girl for the rest of her life. She would have been granted anonymity if she had complained to the police that she was the victim of a sexual offence. But that was not the case here.
On behalf of media groups, Mike Dodd, legal editor of the Press Association, argued that reporters should be allowed to identify the 10 men. He said the national news agency had no wish to identify the 17-year-old either now or in the future unless she chose to tell her story.
Dodd said the case had been going on for a month. It was “alarming and exceptional” that the 10 had been allowed anonymity for so long. The public needed to know who they were, Dodd told the judge.
Dealing with the suggestion that naming the men might prejudice future criminal proceedings against them, Dodd said “that goes with the territory”. There needed to be strong reasons for restricting reports of cases decided in open court, he argued.
The judge ruled that in cases where final injunctions were granted the men concerned could be identified. There was a high public interest in the public knowing what had happened. The police had produced no evidence of any risk to the mens’ lives.
However, the judge reserved his position on whether to name the respondents against whom no final order had been made.
