In the Matter of Re "H"

Where the conditions in section 47(2) of the Family Law Act 1996 are satisfied, the court must attach a power of arrest to an occupation order unless satisfied that the applicant or relevant child will be adequately protected without it. The provision applies even where the respondent is under 18. The limited sanctions available for contempt by minors do not create an exception which Parliament has not enacted. A power of arrest also serves the independent protective purpose of removing the respondent from the scene. The respondent’s age, family relationship and the practical reliability of alternative police protection are relevant to the adequate-protection exception, but did not justify withholding the power in this case.

The respondent, aged 17 years and three months, appealed from an occupation order made by His Honour Judge Sleeman in the Principal Registry of the Family Division. The order required him to leave his parents’ home and prohibited his return. A power of arrest was attached under section 47(2) of the Family Law Act 1996.

Permission to appeal was granted only in relation to the power of arrest. The respondent argued that section 47(2) did not apply to minors because the court had limited powers to punish a person under 18 for contempt, and alternatively that the father and the respondent’s young sister would be adequately protected without the power. The central issue was whether the statutory duty was subject to an unexpressed exception for respondents under 18.

1. Appeal dismissed. The Court of Appeal, comprising Lady Justice Hale, Lord Justice Laws and the President, unanimously dismissed the appeal. There was no order as to costs, save for legal aid assessment.
2. Section 47(2) of the Family Law Act 1996 imposed a mandatory duty. The two statutory preconditions were satisfied: there was a relevant order, and the respondent had used or threatened violence against the applicant or a relevant child. The power had therefore to be attached unless the court was satisfied that protection would be adequate without it.
3. The court could not read into the subsection an exception for a respondent under 18. The restricted sanctions available for contempt by minors, arising under sections 1 and 9 of the Criminal Justice Act 1982 and related provisions, disclosed a serious gap in the law but did not alter the clear statutory language.
4. A power of arrest was not merely a procedural route to committal for contempt. It also enabled the police to remove the respondent from the scene and could directly secure compliance with an occupation order.
5. The phrase “all the circumstances of the case” included the father-and-son relationship and the respondent’s young age. Those matters were relevant to whether protection without arrest would be adequate; they did not determine whether the court had jurisdiction to attach the power. Previous police willingness to attend and arrest for breach of the peace did not guarantee future protection, particularly given the father’s natural reluctance to pursue criminal proceedings against his son.
6. Laws LJ agreed that the statutory obligation could not be disapplied or modified for respondents under 18. The President expressly endorsed the concern that the powers and sanctions available in such cases required reconsideration.

• Court of Appeal (Civil Division): Appeal against the order of His Honour Judge Sleeman dismissed. The power of arrest attached to the occupation order was upheld.
• Principal Registry of the Family Division: On 8 June 2000, an occupation order required the respondent to vacate his parents’ home and prohibited return; a power of arrest was attached until 8 December 2000.