T (A Child)

Under Family Law Act 1996, s 42(2)(b), a court seized of valid family proceedings, including proceedings under the inherent jurisdiction, may make a non-molestation order for a relevant child even without a formal application. Molestation is fact-sensitive. It does not require direct interaction with the child or a positive intention to molest. The focus is whether deliberate conduct causes, or is likely to cause, harassment, alarm or distress of a degree requiring court intervention. The court must consider all the circumstances, including the child’s health, safety and well-being. Conduct threatening a child’s placement and likely to cause significant emotional harm may justify an order.

The local authority appealed from an order made by His Honour Judge Furness QC, sitting in the High Court (Family Division), on 31 March 2017. The judge granted an injunction under the inherent jurisdiction restricting the mother’s and Mr JM’s movements, but declined to make a non-molestation order under the Family Law Act 1996. An application by the foster carers had failed because they were not associated with the respondents, and the judge considered that conduct not seen by the child did not amount to molestation.

The appeal concerned whether the existing inherent-jurisdiction proceedings gave the court jurisdiction under s 42(2)(b), and whether the conduct could constitute molestation despite the absence of direct contact with the child.

The appeal was allowed. The Court of Appeal, comprising Lord Justice McFarlane giving the judgment with which Lord Justices Davis and Hickinbottom agreed, made a non-molestation order against the mother and Mr JM.

1. Jurisdiction. The existing application under the inherent jurisdiction constituted valid “family proceedings” under s 63(1) of the Family Law Act 1996. The child was a “relevant child”, particularly under s 62(2)(c). Section 42(2)(b) therefore gave the court jurisdiction to make a non-molestation order for the child’s benefit even though no formal application had been made. This was a substantive statutory route designed to supplement other family proceedings, not an empty procedural device.
2. Molestation. The earlier authorities, including Horner v Horner [1983] 4 FLR 50 and C v B (Non-molestation order: Jurisdiction) [1998] 1 FLR 554, supported a fact-sensitive assessment focused on harassment or alarm and distress of a degree calling for court intervention. C v C [2001] EWCA Civ 1625 did not require proof of a positive intention to molest. Direct interaction between the respondent and the child was unnecessary.
3. Application of the statutory test. Under s 42(5), the court had to consider all the circumstances, including the need to secure the child’s health, safety and well-being. The findings showed a concerted course of conduct, a genuine threat of abduction, destabilisation of the placement and likely significant emotional harm. That conduct amounted to harassment and made an order clearly necessary.
4. Disposal. Remittal was unnecessary because the judge had made clear findings and had declined relief only because of an error of law. The respondents remained at liberty to apply to the High Court to vary or discharge the order.

• Court of Appeal (Civil Division): The appeal was allowed and a non-molestation order was made against the mother and Mr JM.
• High Court (Family Division): On 31 March 2017, His Honour Judge Furness QC granted an injunction under the inherent jurisdiction but refused a non-molestation order under the Family Law Act 1996.