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Re B (Children: Police Investigation) [2022] EWCA Civ 982

An appeal concerning an injunction made in the High Court prohibiting any person serving with the Metropolitan Police (‘MPS’) from interviewing two teenage children (‘A’ and ‘B’) without the ‘express order’ of the judge save for speaking to them ‘in order to determine whether they are at a real and immediate risk of being subjected to harm or ill-treatment and for the purpose of considering whether any immediate police or statutory powers should be exercised to avoid that risk’ [1]. Appeal allowed.

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Background

The issue for the court to determine was whether the High Court (i) had inherent jurisdiction to make the injunction, and if so, (ii) whether it should have exercised its powers to do so [1].

There are long-running and complex private family law proceedings in relation to A and B. The background to the appeal can be summarised as follows:

- Professionals had worked with the parents and children for at least 15 months to try and resolve parental conflict. The conclusion was reached that the mother had turned the children against the father and, if they remained with her, the emotional and psychological harm the children had suffered would be reinforced. Keehan J had ordered a transfer of residence of the children from the mother to the father and the children moved to live with him in November 2020. There were two early episodes where the children ran away [2].

- On 15 October 2021, A's school received an email, apparently signed by both children, which essentially stated that they were being abused by their father, lived in a constant state of terror, and professionals had repeatedly failed to help them [3]. Police were notified and spoke to B who confirmed the allegations [4]. A had reached school that day but left before entering so was reported as missing, prompting an urgent and ex parte application for collection and port alert orders [5].

- The father was informed that the children would be seeking separate representation in the ongoing proceedings. Applications dated 14 October 2021 supported by a statement of Mrs Jane Broadley (a family solicitor with 'significant experience' in representing children) dated 15 October 2021, sought an ex parte order that the children live 'other than with their father until the application is properly and fully considered by the court' [6]. Later that day, without knowledge of the statement, MPS officers and Children's Services conducted a joint investigation. While talking to B at school, the father arrived, asserting a court order prevented them from speaking to the children [7].

- There is no transcript of the without notice and ex parte proceedings before Keehan J on 15 October and it is difficult to ascertain when the father's solicitors had been notified of the email or what detail and evidence was provided to the judge in support of the application [8]. The order dated 15 October 2021 contained a recital in the terms 'the court being satisfied that the Father had not acted inappropriately towards either of the children', and it prohibited 'the Metropolitan Police' and 'Children's Services at the [the local authority] or elsewhere' from interviewing either A or B without the judge's 'express order' [8]. That night, counsel for the Commissioner of Police of the Metropolis made an urgent application to the out of hours Family Division judge [9].

- On 18 October 2021, the order of 15 October 2021 was varied to replace the words 'Metropolitan Police' with 'any person serving with the Metropolitan Police' and providing that the prohibition did not prevent 'a constable from speaking to either child in order to determine whether they are at a real and immediate risk of being subjected to harm or ill-treatment and for the purpose of considering whether any immediate police or statutory powers should be exercised to avoid that risk' [10]. At the hearing on 18 October, written submissions were made by counsel for the MPS asserting the order of 15 October overreached the court's powers, also drawing attention to the deficiencies in the process leading to that order [11].

- On 24 October 2021, the MPS made an application to interview the children [13]. It would appear from a document headed 'draft order' with indication that it was a 'composite draft' inserted into the bundle (father contending for what was written in green and the solicitor for the children for what was in red) that Keehan J made an order which, amongst other things, recorded he would expect a 'fully informed decision' to be made at a senior level in the MPS before officers spoke to the children about 'the allegations that are the subject of this matter' and adjourned the application to 19 November 2021 [15].

- The MPS' application was not heard on 19 November 2021, but in his judgment in the application made by A and B to be joined as parties, Keehan J said that, as no statement from a senior officer in charge of child protection from the MPS had been filed, he assumed that the MPS did not wish to interview the children [17].

- On 15 December 2021, Ms Woodall, a therapist working with A and B, gave evidence that, the day before, A had revealed that she had been repeatedly contacted by her mother though third parties  [18]. Keehan J expressed concern and raised the possibility that A and B may need bodyguards [19]. A recital in the order made subsequently stated that the court was satisfied that putting the mother on notice of the hearing prior to the hearing fixed on 12 January 2022 would 'put the children at grave risk of significant harm'. The judge directed that the order was not to be served on either party [20].

- The anticipated hearing on 12 January 2022 did not take place until 19 January. Leading counsel for the father invited the judge to make orders dealing with the police application to interview the children. The details of the order can be found at [22].

- The case was listed on 24 March 2022. MPS wished to proceed to interview A and B, not confined to the allegations made in the email of 15 October, so the application was for the injunctive order to be amended so the children could be 'appropriately interviewed', or otherwise, for the order to be discharged [23]. Macur LJ notes that a transcript of the hearing reveals Keehan J's antipathy towards the MPS application from the outset. Keehan J refused the MPS' application [26], his reasoning being found at [25].

The Appeal

The MPS appealed, challenging the court's powers to make an order of this nature (grounds 1, 2, and 3) and the judge's welfare evaluation (grounds 4 and 5). Permission to appeal, limited to grounds 1-3, was granted by Peter Jackson LJ. The challenge was namely that the judge had overreached his otherwise extensive inherent jurisdiction, usurping the common law and/or statutory duties of the police in the detection, prevention and prosecution of crime [28]. 

Macur LJ notes how comprehensive directions were made as to the structure of bundles to be filed by specific reference to CPR PD52C paragraph 27. A timetable was provided for serving skeleton arguments and directing that the father be represented, this timetable then being amended following the MPS' successful application to amend the grounds of appeal and skeleton argument. Nevertheless, the requirement for the Respondents to serve a skeleton argument by 21 June 2022 was 'patently clear' [29]. Macur LJ says how she felt it necessary to refer to these details to highlight 'the evident wholesale lack of discipline in preparing this case for an efficacious hearing thereafter', going on to address the various issues that arose [30-34].

The judge then raised how the Court not having rejected the bundles or their contents due to non-compliance with procedure and for the failure to identify essential reading reflected 'the urgent need to hear an appeal which has widespread implications for the interface of the police and family court jurisdictions and the court's concern about the worrying facts of this case so far as the two children are concerned' [35].

Discussion

Also raised was 'a similar lack of discipline [being] demonstrated by the procedural deficiencies which preceded the making of the original oral application for an injunction, without notice to the MPS or the Children's Services and ex parte' [36]. Macur LJ presumed the judge had not been referred to the Practice Guidance (Family Courts: Without Notice Orders) [2017] 1 WLR 478 where, at paragraph 5, the relevant principles which it is 'essential' for the court to observe are addressed. There was a lack of compliance in several respects [36], this then going on to be explored.

Analysis

Macur LJ went on to say how 'There is no issue but that, regardless that A and B were neither wards of court nor subject to care proceedings, the High Court has retained a parens patriae jurisdiction by which, theoretically at least, it may prohibit a police officer from questioning the children. However the exercise of that jurisdiction must be approached by reference to a considerable body of jurisprudence' [44].

Macur LJ then raised how this body of jurisprudence is summarised by Sir James Munby, President, in A Ward of Court [2017] EWHC 1022 (Fam), but how there is no indication that either this case or the equally august authority to the same effect, namely Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam), were cited in argument in the Court below.  Macur LJ suggested that, if they had been, 'it would have been unnecessary to burden the court with further authority on the principle in point' [44]. This is followed by an exploration of these cases and the principles in them [45-52], as well as their application to this current case.

It seemed to Macur LJ that the judge's comparison of 'welfare best interests' as against 'simply the broad duty upon the police to investigate crime' was suggestive that the judge had lost sight of the 'altogether different considerations' which fall within the remit of other public bodies. Macur LJ found that, as it is, 'the order of 15 October 2021, (as amended), impermissibly interferes with an operational decision made by the MPS regarding the scope and manner of the criminal investigation to be conducted into the circumstances of the case' [53].

Conclusion

With regards as to whether (i) the High Court had inherent jurisdiction to make the injunction, and (ii) whether it should have exercised its powers to do so, both Peter Jackson LJ and Nugee LJ were in agreement with Macur LJ's conclusion. In relation to (i), yes, but with a significant caveat, and in relation to (ii), no [57].
The appeal was allowed and the extant injunction directed to MPS was set aside [58].


Case summary by Diana M. Panizzon-Pineda, Barrister, St John's Chambers

For full case, please see BAILII