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President explains when security services may question ward of court

Judgment relevant to radicalisation cases

The President of the Family Division, Sir James Munby, has set out the legal framework in which the security services may interview a ward of court in, for example, cases where there are radicalisation issues.

In In the matter of a Ward of Court [2017] EWHC 1022 (Fam), the issue was whether the Security Service need to obtain the permission of the court to fulfil its statutory functions in accordance with the Security Service Act 1989 when those actions relate to a ward of court? The answer applies equally to the activities of, for example, police officers, officers of Immigration and Enforcement and, no doubt, officers of other investigatory, enforcement or regulatory agencies.

The President deliberately says very little about the facts of this case. He noted simply that the case concerned a teenager who is subject of proceedings brought by a local authority and also a ward of court. Radicalisation is an issue.

Unusually, Munby P concealed the case number, dates of the hearings (which were themselves not listed) and the names of counsel and those who instructed them.

The issue before Munby P required examination of two, well-known principles of wardship law: on the one hand, no "important" or "major" step in the life of a ward can be taken without first obtaining the approval of the wardship judge; on the other, 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.

The President started with the second of those. He found a helpful and authoritative explanation of the principle in the judgment of Lord Scarman in A v Liverpool City Council [1982] AC 363. From there, Munby P traced the articulation of that principle through the case-law and the different and varied contexts in which it apples: see [12] – [14]. He highlighted an aspect of the principle: wardship does not privilege a ward over a child who is not a ward and does not give immunity not available to other children.

Next, his Lordship turned to the "important" or "major" step principle and found that detailed consideration was required as to what this in fact covered: in particular, as to whether it covered police interviews. Munby P noted that, whilst in October 1986 the principle did not appear to extend to police interviews (see Lowe & White, Wards of Court, ed. 2 1986), by December 1986 it has been "discovered" (at [22]) by Booth J in Re S (Minors) (Wardship: Police Investigation) [1987] Fam 199.  It appeared that, at the point of discovery, no authority was cited and no reference made to the A v Liverpool City Council principle.

The President traced the principle through the case-law, academic commentary and practice directions: see [23] – [39]. With the introduction of the FPR 2010, what had previously been contained in the Practice Direction of 1987 and 1988 became subsumed in PD12D, which, at para 5.2, repeats the suggestion that, for police to interview a ward of court, an application must first be made to and granted by the court.

Having examined the relevant minutes of the Family Procedure Rules Committee and its Children's Proceedings Working Party, Munby P found that no reference had been made, in drafting PD12D, to, for example, the comments of Sir Stephen Brown P in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347, that there is no need to make an application in respect of a ward that would not be made in respect of a non-ward child and that the (now old) practice direction required re-consideration.

The President set out the following conclusions:

(a) Whereas in relation to interactions between the police and wards of court, the court has been fully alive to and careful to apply the A v Liverpool City Council principle and the no "major" step principle, the authorities relating to police interviews stand in "startling contrast" (at [44 (ii)] to this general run of authority;

(b) In none of the authorities in which the principle or rule that judicial consent is required before the police can interview a ward of court has there ever been any attempt to explain how that asserted rule – or, indeed, the Practice Directions of 1987 and 1988 – can be reconciled with the A v Liverpool City Council principle, including the "no privilege over other children" principle;

(c) 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. Even the Court of Appeal authority on this is not determinative (given the principle that "a subsequent court is not bound by a proposition of law assumed at an earlier court that was not the subject of argument before or consideration by that court", at [44 (v)]);

(d) PD12D, para 5, is "simply wrong" and "in any event, cannot properly be understood unless read in conjunction with what Sir Stephen Brown P said in Re G; Re R Note [1990]", at [48]. There is a pressing need for PD12D, para 5, to be considered by the Family Procedure Rules Committee, and "radical surgery" (at [49]) will probably be required;

(e) In the meantime, the guidance of Sir Stephen Brown P should be followed;

(f) And finally – for children who are looked after (under section 20 or a care order) the President suggests that the fact that a local authority is acting as a corporate parent should not have any impact vis-à-vis the police / Security Service / other agency and therefore, unless the legislative framework governing the functions of the relevant agency requires, for example, consultation with or consent from a parent, a statutory agency is not required to consult with (let alone obtain the consent of) the local authority.

For the judgment, prefaced by a summary by Alexander Laing of Coram Chambers (from which this item is derived), please click here.