B e f o r e :
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION ____________________
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HTML VERSION OF JUDGMENT APPROVED ____________________
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Sir James Munby, President of the Family Division :
I am concerned with a teenager who is the subject of proceedings brought by a local authority and who is also a ward of court. I propose to say nothing more about the circumstances of the case – which is allocated to another judge of the Division – except to note that radicalisation is an issue in the proceedings.
The specific issue with which I am concerned arises out of the fact that the teenager was approached by an officer of the Security Service – see the Security Service Act 1989 as amended – acting in the course of that officer's exercise of functions as an officer of the Security Service. That approach, so far as I can see, was entirely proper. The concern about what happened arises solely because the officer's approach was to someone who is a ward of court. When the local authority became aware of what had happened, it wrote to the Security Service suggesting that the approach should not have taken place without the prior authority of the court and that the officer was at serious risk of being in contempt of court.
The matter has been twice before me. On the first occasion, having heard Leading Counsel on an application made by the Security Service without notice, I made an order containing the following recital:
On the second occasion, having had the assistance of Leading Counsel for the local authority, I made an order containing the same recital.
It is quite clear to me, though I do not for obvious reasons propose to elaborate the point, that there is a pressing need, having regard both to the interests of the ward and of the operational requirements of the Security Service, that there should be no identification either of the ward or of the local authority. I have therefore taken the unusual step of concealing in this judgment the case number, the dates of the hearings (which were not listed) and the names of Leading Counsel and of those who instruct them.
I make no criticism whatever either of the Security Service or of the local authority. What this episode has highlighted, however, is a startling lack of clarity in the law, which needs to be resolved in the interests of all who may be involved in similar matters in future and, indeed, in the wider public interest.
Before proceeding further, I need to emphasise that, although the issue has arisen in this particular case in the context of the activities of the Security Service, exactly the same point can arise in the context of the activities of, for example, police officers, officers of Immigration Enforcement and, no doubt, officers of other investigatory, enforcement or regulatory agencies.
I repeat, so that there is no room for misunderstanding, a point I made in paragraph 12 of Radicalisation Cases in the Family Courts: Guidance issued by Sir James Munby President of the Family Division on 8 October 2015 :
General principles
The issue with which I am concerned lies at the intersection of two well-known principles of wardship law. One, long-established, is that no "important" or "major" step in the life of a ward can be taken without first obtaining the approval of the wardship judge. The other, more recently recognised, is that the wardship court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by law to another public authority. Not much reflection is needed to appreciate the potential for tension between these two principles. The present case is a good example.
General principles: the A v Liverpool City Council principle
The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council , Lord Scarman said, at p 795:
He continued, at p 797:
Lord Scarman was not of course disputing the High Court's power of judicial review under RSC Ord 53 (what is now CPR Pt 54) when exercised by what is now the Administrative Court. What he was disputing were the High Court's powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said, at pp 795–796:
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion ; it is a rule going to the proper ambit of the powers of the wardship court.
What for convenience I shall call the A v Liverpool City Council principle has been reiterated at the very highest level on a number of occasions in recent years: see Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7 , [2009] 1 WLR 413 , Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 , [2014] AC 591 , and, very recently, N v ACCG and others [2017] UKSC 22 .
The A v Liverpool City Council principle arises in many different and varied contexts. There are many cases to be found in the reports where a child is affected by some decision of a public official or a public body. Examples include (I list the examples in roughly chronological order and without providing exhaustive lists of the relevant cases) an education authority: see In re B (Infants) [1962] Ch 201 and In re D (A Minor) [1987] 1 WLR 1400; the Secretary of State for the Home Department in relation to a child subject to immigration control: see In re Mohamed Arif (An Infant) [1968] Ch 643 and R v Secretary of State for Home Department ex p T [1995] 1 FLR 293; a local authority exercising child care functions: see A v Liverpool City Council [1982] AC 363; criminal prosecuting authorities: see In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1 and In re R (Wardship: Criminal Proceedings) [1991] Fam 56; an adoption agency: see In re W (A Minor) (Adoption Agency: Wardship) [1990] Fam 156; the Secretary of State for Defence in relation to a boy soldier: see In re JS (A Minor) (Wardship: Boy Soldier) [1990] Fam 182; the Secretary of State for the Home Department in relation to a baby living with its mother in a prison mother and baby unit: see CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam) , [2004] 2 FLR 517 , and Islington London Borough Council v TM [2004] EWHC 2050 (Fam); [1] police decision-making in connection with police protection: see In re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam), [2010] 1 FLR 1026; the statutory duties of housing authorities: see Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7 , [2009] 1 WLR 413 ; and, very recently, the National Probation Service: see R (ZX) v The Secretary of State for Justice [2017] EWCA Civ 155 (the case involved an adult but the principle is the same).
In many ways, the modern starting point, albeit it pre-dated A v Liverpool City Council [1982] AC 363, is the much-cited judgment of Russell LJ in In re Mohamed Arif (An Infant) [1968] Ch 643, 662, which it is helpful to set out again:
That last point, which gives striking emphasis to the A v Liverpool City Council principle, was reiterated by Hoffmann LJ in R v Secretary of State for Home Department ex p T [1995] 1 FLR 293, 297.
Related to, in fact an aspect of, the A v Liverpool City Council principle, is the important principle that wardship does not privilege a ward over a child who is not a ward and does not give a ward an immunity not available to other children. The point was put very pithily by Lord Denning MR in In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, 86:
Millett LJ made the same point in In Re R (Wardship: Restrictions on Publication) [1994] Fam 254, 271, where, having referred to Russell LJ's judgment in In Re Mohamed Arif , he continued:
The same thinking underlies an important observation by Lord Donaldson of Lymington MR in In re R (Wardship: Criminal Proceedings) [1991] Fam 56, 65-66:
General principles: the 'no important step' principle
I turn to the principle that that no "important" or "major" step in the life of a ward can be taken without first obtaining the approval of the wardship judge. I start with what I said in Egeneonu v Egeneonu [2017] EWHC 43 (Fam) , para 26, in large part repeating what I had earlier said in Kelly v British Broadcasting Corpn [2001] Fam 59 , 71, 75:
One of the textbooks to which I had referred in Kelly was Hershman & McFarlane's Children Law and Practice. In the current edition, the authors say this (Vol 1, para B[1060]-[1062]):
This is elaborated (para B[1081]-[1085]):
These seemingly confident assertions that judicial consent is required before the police can interview a ward of court immediately invite two questions: How can this be reconciled with the A v Liverpool City Council principle? Is this not giving a ward an impermissible and unprincipled privilege over other children?
In fact, as a close examination of the authorities shows, the asserted rule rests on very insubstantial foundations. I need therefore to explore the issue in some detail.
Police interviews with wards of court
I start with Lowe & White, Wards of Court, ed 2 1986, where the law is stated as at 1 October 1986. It is a very striking and, in my judgment, very telling fact that the authors are, seemingly, unaware of any principle that police interviews with a ward of court require judicial approval. Chapters 5 and 8 contain detailed discussions of the 'no important step' principle, but are bare of any suggestion that it extends to police interviews. Specific discussion (para 5-28) under the heading "Interviewing the ward" is as illuminating for what it does not say as for what it does:
There is then a reference to certain observations of Russell LJ in In re T(AJJ) (An Infant) [1970] Ch 688, 689, as to which see now Kelly v British Broadcasting Corpn [2001] Fam 59 .
So, as of 1 October 1986, the asserted rule was apparently unknown. Yet within less than three months what was previously unknown had been discovered by Booth J in her judgment on 16 December 1986 in In re S (Minors) (Wardship: Police Investigation) [1987] Fam 199. She said this (at 202):
So far as appears from the report, no authority was cited in relation to the question of police interviews and no reference was made to either A v Liverpool City Council [1982] AC 363 or In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791.
Next, the decision of Waterhouse J in In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1, a case where children had been interviewed by the police before they became wards of court. The present point seems to have gone by concession, because (at 6) Waterhouse J said this:
I note that, amongst the authorities cited to Waterhouse J, was the decision of Booth J in In re S (Minors) (Wardship: Police Investigation) [1987] Fam 199. He went on:
Precisely so. It appears from the report that A v Liverpool City Council [1982] AC 363 was cited to the judge; In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58 seems not to have been cited, but counsel plainly had the 'wardship does not privilege a ward' point well in mind.
Waterhouse J set out his conclusions (at 11) as follows:
He continued:
The decision in that case on 24 August 1987 led to the publication on 11 November 1987 of Practice Direction (Ward: Witness at Trial) [1987] 1 WLR 1739, issued by Senior Registrar Tickle at the direction of the President, at that time Sir John Arnold P. The material part of the Practice Direction was in the following terms:
I have to say, with all respect to those responsible for it, that the terms of this Practice Direction are surprising. Quite apart from the fundamental question of how it accommodated the A v Liverpool City Council principle, in at least two respects the Practice Direction simply did not address the operational realities. First, what if a policeman, having stopped a 17-year old, wants to talk to him on the pavement, or, having arrested him, wants to interview him at the police station, but is then told: "You cannot do this, I am a ward of court." What is the policeman to do? Secondly, supposing that a sensitive ongoing police investigation relates to someone – the ward's estranged parent for example – who is party to the wardship proceedings but is someone who, from the police perspective, should not be alerted to what is going on, is that person nonetheless to be served?
In fact, these obvious deficiencies were addressed with the publication on 18 July 1988 of Practice Direction (Ward: Witness at Trial) (No 2) [1988] 1 WLR 989, issued by Senior Registrar Turner at the direction of the President, by then Sir Stephen Brown P. The material part of the Practice Direction was in the following terms:
In In re A (A Minor) (Wardship: Police Caution) [1989] Fam 103, decided on 28 June 1989, Cazalet J had to consider the role of the wardship court where the police wished to caution a ward of court. The question fell into two parts. In relation to the first, Cazalet J said this (at 106):
Having referred to In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1, he continued:
In relation to the second part of the question, whether it was necessary to obtain the consent of the wardship court before the caution could be administered – the Home Office guidelines for administering such a caution requiring the "consent" of the "parents or guardian" to the caution being issued – Cazalet J (at 109) posed the question: "Who, then, when a child is a ward of court, is the appropriate parent or guardian to give the required consent under the guidelines?" His answer (at 110-111) was this:
The next case is the decision of Ewbank J on 15 December 1989 in Re B (A Minor) [1990] FCR 469, a case involving a ward who was 17½ and had been arrested by the police for burglary. Ewbank J said this:
In In re JS (A Minor) (Wardship: Boy Soldier) [1990] Fam 182, Hollis J was concerned with a boy soldier who had gone absent without leave and returned home to his parents. His mother issued wardship proceedings. Hollis J struck out the proceedings. Having referred to In re Mohamed Arif (An Infant) [1968] Ch 643, A v Liverpool City Council [1982] AC 363 and In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1, he said (at 188):
The forthcoming case before the President to which Ewbank J had referred in Re B (A Minor) [1990] FCR 469 was, it seems, Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347, in which Sir Stephen Brown P gave judgment on 19 March 1990. It was a case in which the police sought permission, which was granted, to administer cautions to two wards of court. Sir Stephen Brown P said this (at 348-349:
I do not know what, if any, follow up there was to this. Perhaps unsurprisingly at this distance in time, inquiries both of the Official Solicitor and of the Metropolitan Police have drawn a blank, and there is nothing in the papers in the office of the President of the Family Division which throws any light on the matter. What is clear, however, is that whatever may or may not have happened, no changes were made to the two Practice Directions which, as we shall see (below), remained in force until replaced in 2010 by PD12D.
Next, there was the important decision of the Court of Appeal (Lord Donaldson of Lymington MR, Balcombe and Beldam LJJ) in In re R (Wardship: Criminal Proceedings) [1991] Fam 56, a case where the defendant in criminal proceedings in the Crown Court sought permission, refused by the wardship judge, to interview and call his son, a ward of court, as a witness. The Court of Appeal reversed the judge on both points.
In relation to the first point, Lord Donaldson of Lymington MR began by observing, at 62:
He then proceeded to consider the two practice directions to which I have already referred, commenting that, although they referred only to interviews by the police they should be understood as applying mutatis mutandis to interviews by the defence. Consent to interview the ward was given for reasons explained at p 68.
In relation to the second point, Lord Donaldson considered in turn In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1 and In re JS (A Minor) (Wardship: Boy Soldier) [1990] Fam 182, [3] from which he quoted the lengthy passage from the judgment of Russell LJ In re Mohamed Arif (An Infant) [1968] Ch 643 which I have already set out. He said (p 67):
He went on:
The final authority is the decision of McFarlane J, as he then was, in Re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam), [2010] 1 FLR 1026. The ward and his mother were taken into police protection. The issue was whether the father should have interim contact, something which the police were not prepared to contemplate if the protective arrangements were to remain in place. The father and the grandparents (para 7) sought orders quashing the police decision and requiring the police to continue to provide the current level of protection, notwithstanding that interim contact might take place. Rejecting the father's claim, McFarlane J said this (para 57):
I referred above to what I had said about police interviews with wards of court in Kelly v British Broadcasting Corpn [2001] Fam 59 and in Egeneonu v Egeneonu [2017] EWHC 43 (Fam) . The point did not in fact arise for decision or discussion in either case. In Kelly v British Broadcasting Corpn [2001] Fam 59 , the question was whether, as suggested by what Russell LJ had said in In re T(AJJ) (An Infant) [1970] Ch 688, 689, a journalist required the prior permission of the court to interview a ward. I held that he did not. In Egeneonu v Egeneonu [2017] EWHC 43 (Fam) , I was concerned to analyse the status of a ward of court in relation to alleged contempts of court. In each case my reference to police interviews was merely in passing.
With the introduction of the Family Procedure Rules 2010, what had previously been contained in the Practice Directions of 1987 and 1988 became subsumed in PD12D, Inherent Jurisdiction (including Wardship) Proceedings . Under the sub-heading Criminal Proceedings , PD12D, para 5, provides as follows:
Collation of the various texts shows that, some minor up-dating apart, the substance of the earlier Practice Directions was carried forward unchanged: paras 5.2 and 5.3 derive from the Practice Direction of 1987, and paras 5.4, 5.5 and 5.6 from the Practice Direction of 1988, hence, no doubt, the somewhat jarring juxtaposition of the seemingly unqualified paras 5.2 and 5.3 and the important qualifications set out in paras 5.4 and 5.5.
The very fact that the substance of the earlier Practice Directions was carried forward unchanged into PD12D would strongly suggest that those responsible for the drafting of PD12D did not have in mind what Sir Stephen Brown P had said in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347 and consequently never addressed themselves to the problems it had thrown up. In fact, an examination of the relevant minutes of the Family Procedure Rule Committee and of its Children's Proceedings Working Party which has been undertaken at my request shows that they are silent on the point and I am told that the relevant papers contain no reference to Re G or to what Sir Stephen had said.
Finally, I need to mention that paragraph 7(i) of Radicalisation Cases in the Family Courts: Guidance issued by Sir James Munby President of the Family Division on 8 October 2015 noted that:
The footnote to that paragraph read as follows:
Discussion
Pulling together the threads of this analysis, a number of things, in my judgment, are quite clear:
i) In relation to interactions between the police and wards of court, the court has been fully alive to and careful to apply both the A v Liverpool City Council principle and the 'no privilege over other children' principle: see, for example, in In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1, In re A (A Minor) (Wardship: Police Caution) [1989] Fam 103, In re R (Wardship: Criminal Proceedings) [1991] Fam 56 and Re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam), [2010] 1 FLR 1026.
ii) The authorities relating to police interviews with wards of court stand in startling contrast to this general run of authority.
iii) The principle or rule that judicial consent is required before the police can interview a ward of court was unknown to the authors of Lowe & White and was first discovered by Booth J in In re S (Minors) (Wardship: Police Investigation) [1987] Fam 199, where, it seems, no authority was cited on the point and no reference was made to either A v Liverpool City Council [1982] AC 363 or In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791.
iv) In In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1 the point seems to have gone by concession.
v) In In re R (Wardship: Criminal Proceedings) [1991] Fam 56 the rule, by then bolstered by the Practice Directions of 1987 and 1988, was not challenged. I draw attention in this context to the decision of the Court of Appeal in Regina (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 , para 33, a case which involved the effect of a previous decision of the Court of Appeal, to the effect that "a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court."
vi) In none of the authorities bearing on the point has there ever been any attempt to explain how the asserted rule (or, for that matter the two Practice Directions of 1987 and 1988) can be reconciled either with the A v Liverpool City Council principle or with the 'no privilege over other children' principle.
In my judgment, and leaving on one side for the moment the various Practice Directions, there is not and never has been any principle or rule that judicial consent is required before the police can interview a ward of court. With great respect, I think that Booth J was wrong to hold that there was, and the subsequent authorities, where the point was not in fact argued, take the matter no further. For the reasons explained in Regina (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 , even the clearly stated view of the Court of Appeal in In re R (Wardship: Criminal Proceedings) [1991] Fam 56 is not determinative.
The short point, in my judgment, is that the asserted principle or rule that judicial consent is required before the police can interview a ward of court, is impossible to reconcile either with the A v Liverpool City Council principle or with the 'no privilege over other children' principle.
The reality, of course, is that, in very large measure, the asserted principle or rule that judicial consent is required before the police can interview a ward of court has been hollowed out, almost to the point of extinction, first by the Practice Direction of 1988 (now PD12D, paras 5.4 and 5.5) and even more so by the subsequent decisions of Ewbank J in Re B (A Minor) [1990] FCR 469 and, even more significant in its impact, of Sir Stephen Brown P in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347.
The consequence of all this is that, as matters stand, the position is exceedingly unsatisfactory, to use no stronger word. The concerns raised by the Commissioner of the Metropolitan Police as long ago as 1990 (concerns which I can well understand and which prompted Sir Stephen Brown P to think that a further Practice Direction might be needed to clarify the matters giving rise to concern) have not been appropriately addressed, although they remain at least as valid today as 27 years ago; and the world continues to be presented with a Practice Direction which in significant part is, in my judgment, simply wrong and which in any event cannot properly be understood unless read in conjunction with what Sir Stephen Brown P said in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347.
There is, in my judgment, a pressing need for paragraph 5 of PD12D to be considered as a matter of urgency by the Family Procedure Rule Committee. Radical surgery will probably be required.
In the meantime, police officers, officers of the Security Service and others in a similar position should follow the guidance given by Sir Stephen Brown P in the following passages in his judgment in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347 (emphasis added):
The Police and Criminal Evidence Act 1984 does not apply to the Security Service. In relation to the Security Service and other agencies to which it does not apply, Sir Stephen's references to the 1984 Act should therefore be read as referring to the relevant legislative framework governing the functions of the Security Service or other agency involved.
The local authority has queried what the position would be in relation to a child who is either accommodated by a local authority in accordance with section 20 of the Children Act 1989 or subject to a care order (interim or final) in accordance with section 31 or section 38 of the 1989 Act. This is really a matter for another day, but in principle I cannot see how the fact that the local authority is exercising its statutory powers in either of these ways under the 1989 Act can either privilege the child over a child who is not the subject of such arrangements or prevent another statutory agency such as the police or the Security Service from exercising its powers in precisely the same way as they would in relation to a child who is not the subject of such arrangements. The fact that, in a sense, a local authority may be acting as a corporate, statutory parent, does not, vis-a-vis the police or the Security Service or any other agency, put the local authority in any different or more powerful position than a natural parent. So, unless the legislative framework governing the functions of the relevant agency requires, for example, consultation with or consent from a parent (as in In re A (A Minor) (Wardship: Police Caution) [1989] Fam 103), a statutory agency is not required to consult with, let alone obtain the consent of, the local authority. It must, as a matter of principle, be for the relevant agency, not the local authority, to decide how it should act. This is the principle which, for example, we see in action where a child in care is living with its mother in a prison mother and baby unit (see Islington London Borough Council v TM [2004] EWHC 2050 (Fam)) or subject to immigration control (see R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730/2731 (Admin/Fam), [2005] 2 FLR 818 ) or involved in proceedings in SENDIST (see X County Council v DW, PW and SW [2005] EWHC 162 (Fam) , [2005] 2 FLR 508).
Note 1 The key paragraphs are quoted in R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730/2731 (Admin/Fam), [2005] 2 FLR 818 , para 39. [Back]
Note 2 As appears from the report, I appeared in the case on behalf of the appellant. It may be useful to make two points. The first is that, as appears from pp 57-58, no-one referred the court to the decision of Sir Stephen Brown P in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347. The second is that, as appears from p 60, I made the concession, without reference to any authority, that “In exercising the wardship jurisdiction the judge is entitled to grant or refuse permission to interview a ward, whether on behalf of the prosecution or the defence.” I have checked the report against my skeleton argument and list of authorities, which bear out the accuracy of the report. [Back]
Note 3 As appears from the report, p 59, the court had also been referred to A v Liverpool City Council [1982] AC 363. [Back]