Nottingham County Council v P

A local authority cannot obtain a prohibited steps order to achieve a result which could be achieved by a residence or contact order. An order for no contact falls within the concept of a contact order under section 8(1) of the Children Act 1989.

Where children are at risk of significant harm, a prohibited steps order cannot substitute for the public law remedies in Part IV. The local authority should assume responsibility and seek an appropriate care or supervision order. A court cannot circumvent those restrictions by using its power to make an unrequested section 8 order and attaching conditions which artificially impose responsibilities on the local authority.

The local authority sought a prohibited steps order excluding a father from the family home and restricting his contact with two daughters. Ward J had found that the father sexually abused their elder sister, that the younger daughters were at serious risk and that their mother could not protect them. The authority nevertheless declined invitations to apply for a care or supervision order under Part IV of the Children Act 1989.

Ward J refused the authority's application because it sought results achievable by residence and contact orders, for which section 9(2) barred an application by a local authority. Relying on sections 10(1) and 11(7), he then made a residence order in favour of the mother, excluded the father and restricted contact.

The authority appealed against the refusal of its application. The mother, father and children appealed against the orders subsequently made. The central questions concerned the boundary between the private law powers in Part II and the public law jurisdiction in Part IV.

1. Disposition. The court unanimously dismissed the local authority's appeal and allowed the appeals of the mother, father and children. The residence, exclusion and contact orders could not stand.

2. Section 9 restrictions. The authority's prohibited steps application was in reality directed to determining where the children should live and whether they should have contact with their father. Those results could be achieved by residence and contact orders. Sections 9(2) and 9(5)(a) of the Children Act 1989 prevented the authority from obtaining those results indirectly through a prohibited steps order.

3. No-contact orders. A contact order need not provide positively for contact. The sensible construction of section 8(1) includes the court's determination that there should be no contact. An order providing for no contact therefore falls within the general concept of a contact order.

4. Public law protection. Where children are found to be at risk of significant harm, a local authority has a clear duty to take protective steps. Part IV supplies the appropriate care and supervision powers. A care order need not entail removing a child from the parents, while a supervision order gives the authority useful powers concerning the child and family. A prohibited steps order confers no corresponding authority over the children's care and cannot substitute for a Part IV order.

5. Orders made by Ward J. Although section 10(1) may have given the judge a theoretical power to make a section 8 order without an application, the orders made were artificial and inappropriate. They sought to regulate contact through the local authority even though the authority acquired no powers or responsibilities, and the mother did not seek the injunction against the father. The restrictions upon applications and orders in favour of local authorities could not be circumvented in that way.

6. Procedure and ouster. An application of this kind should not be made ex parte to a single justice of a family proceedings court. Any such future application should be transferred to the county court and heard inter partes. The court also considered it very doubtful, without deciding the point, that a prohibited steps order could be used to oust a father from the matrimonial home.

The local authority was ordered to pay one half of each other party's costs. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The local authority's appeal against the refusal of a prohibited steps order was dismissed. The appeals against the residence, exclusion and contact orders were allowed.
2. High Court, Family Division: Ward J refused the prohibited steps application on 27 October 1992, but made a residence order in favour of the mother with conditions excluding the father and restricting contact.
3. Earlier proceedings: The local authority had initially obtained emergency protection orders. Judge Heald subsequently made a direction under section 37 of the Children Act 1989, but the authority declined to apply for a care or supervision order.