England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2007

Mr Justice RYDER :

Background:

1. This is an application issued by an originating summons in the inherent jurisdiction of the High Court on behalf of the Chief Constable of Greater Manchester. The Chief Constable asks for an order or in the alternative a declaration that has the effect of granting him permission to interview two young girls who I shall refer to as KI and KW. They are the first and second defendants and are represented by CAFCASS Legal. The third defendant is the children's mother, NP. The local authority in which the children and their mother reside, Manchester City Council, has also been represented as an interested party. They have been directed to undertake an investigation of the children's circumstances in accordance with section 37 of the Children Act 1989 (the 1989 Act).
2. KI and KW were born on the 14^th January 2000 and are therefore 7 years of age. The un-contradicted facts upon which the application relies are that on the 30^th April 2007 they were both present when their older sister, then aged 12, died from a single gun shot wound to her head. The gun was fired by their brother who is now just 17. He is presently detained in secure accommodation charged with murder and related firearms offences. He is waiting to be arraigned before the Crown Court in Manchester and bail has been refused. It is said by everyone that there were no other eye witnesses to the incident, although that of necessity is peculiarly within the knowledge of the girls and their brother.
3. In his own interview with the police, the girls' brother indicated that the gun was in his jacket pocket and that he was messing about with it when it went off accidentally. There is forensic opinion evidence that may tend to contradict or support aspects of the Crown's case and the defendant's explanation and, accordingly, it is said that the girls' evidence may be crucial to a proper determination of the criminal process.
4. The children's mother, NP, was not in the home at the time. She was attending a funeral in London for a man who had been murdered in Manchester. On the 5^th June 2007 she admitted in interview that she had been asked to look after the gun on behalf of her then boyfriend, that she had buried the gun in a plastic bag in the back garden of her home and that she had informed her son of its whereabouts but instructed him not to touch it. She has recently been charged with firearms offences. It is said that since her interview she has received threatening telephone calls and that she fears for the safety of her family.
5. NP has sole parental responsibility for KI and KW and she has declined to give her consent to the girls being interviewed by the police on the basis of the detrimental impact that she says an interview will have upon them. Their brother's legal representatives have informed the court that he too is opposed to his sisters being interviewed on the basis that they have suffered enough. The criminal defence team has no present intention to interview them.
6. The Chief Constable would not ordinarily ask permission of the family court before embarking upon an aspect of the investigation of a crime, whether that involved children as perpetrators, victims or witnesses and a hearing such as this is not to be encouraged save in the most exceptional of circumstances. In this case the tragedy that has engulfed the family and the sensitivity that the proposed interviews engender has caused him to take an advised course to examine the lawfulness of pursuing his investigation in the face of the opposition of the children's mother.

The section 8 Application:

7. On the 25^th June 2007 and in response to case management submissions made on behalf of the children, the court was asked to deem the application that had been made to include an application for a specific issue order under section 8 of the 1989 Act. Strictly, an application by the Chief Constable in those terms required the court's permission by reason of the provisions of sections 10 (4) and 10 (1) of the Act i.e. he is not entitled as of right to ask for an order under section 8. In the event no party objected to permission being given and having regard to the provisions of section 10 (9) of the Act I give permission for the following reasons:

i) An application for permission is not an application to which the paramountcy principle or the welfare checklist in section 1 of the Act apply;

ii) The factors set out in section 10 (9) are not exclusive but must all be considered;

iii) The court should also have regard to the prospects of success and should ask itself whether there is a serious issue to be tried i.e. does the applicant have a good arguable case as opposed to an unsustainable case or one that is frivolous, vexatious or an abuse of process;

iv) The nature of the application goes to the heart of a parent's responsibility for the welfare of their child and the distinction, if any, between the limits of parental responsibility and upbringing: it raises an important question of public interest;

v) The applicant's connection with the children concerned is that of the agency invested with common law and statutory powers and duties to investigate crime and there is a clear public interest in this court, when invited by that agency, determining any disputed question relating to that agency's powers and duties in relation to a child;

vi) If permission is granted there is a risk that the interviews may cause harm to the children in that the interviews and/or the subject matter of the same may be detrimental to their welfare and likewise, if not granted, harm may be caused to the children by them being privy to the truth of the incident which may not otherwise be revealed leaving them in the invidious position of having to decide for themselves whether to reveal what they know and if so, to whom and for what purpose and with potentially very serious consequences;

vii) There is a clear public interest in determining a) where the welfare balance rests in respect of the possible harms that may be suffered by the children and b) the balance of public interests within which that welfare determination exists in order that the parties might know how to proceed. There is a serious issue to be tried and I give permission accordingly;

viii) In so far as the Chief Constable's application is made in the inherent jurisdiction and one of the questions which arises is the welfare of each of the children concerned, then by section 8 (3) of the Act the proceedings are 'family proceedings' for the purposes of section 10.

The Law:

8. Contrary to her submission that it is doubted that the Chief Constable's application is made in family proceedings where a question arises as to the welfare of the child, mother submits that the decision that the court is asked to make is one which relates to the upbringing of the children and hence in accordance with section 1 (1) of the Act, the children's welfare is the court's paramount consideration. As to welfare, it is submitted that this is a catastrophic family tragedy and the children are likely suffering unresolved traumatic loss which should not be exacerbated by an interview process that may itself be traumatic when the needs of the children would be better met within the therapeutic and home environments.
9. The Chief Constable on behalf of the children submits that the decision is not a question with respect to the upbringing of a child but rather that it is an aspect of parental responsibility and that the court should balance the different rights and interests that are engaged of which the welfare balance is one but not the only or paramount consideration.
10. CAFCASS Legal and the City Council submit that the welfare balance is in favour of both of the children being interviewed.
11. By section 105 (1) of the Act 'upbringing' is defined as "… the care of the child but not his maintenance". By section 3 (1) of the Act 'parental responsibility' is defined as "…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
12. In Re M (Care: Leave to Interview Child) [1995] 1 FLR 825 Hale J. as she then was, was asked to give permission for the interview of two boys in relation to their father's defence to a charge of rape against his partner's daughters. The interview was proposed by the father's solicitor who intended to conduct the interview himself and at the time the children were in the interim care of a local authority. The court identified the following propositions, among others:

i) @ 826: It is 'beyond question' that the court is entitled to require its consent before anyone interviews a ward of court: Re R and Others (Minors) (Wardship: Criminal Proceedings) [1991] 2 FLR 95 @ 98 CA

ii) @ 827: Until the child is old enough to decide for himself, a parent undoubtedly has some control over whom he may see and who may see him.

iii) @ 827: The court's control over interviewing its wards also suggests (though not conclusively) that there is some parental responsibility here

iv) @ 827: There is binding authority that consent to an interview of a child is a matter which can be dealt with by way of a specific issue order which is defined in section 8 (1) of the Act as "an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child" and accordingly it follows that consent to an interview is an aspect of parental responsibility: Re F (Specific Issue: Child Interview) [1995] 1 FLR 819 CA.

v) @ 828: Parents do not have unlimited powers, even over matters which may be aspects of their responsibility. They cannot exercise their powers in such a way as to infringe the rights of others. If they do so, the court must provide a remedy.

vi) @ 828: The court itself has accepted that there are limits to its powers to protect wards of court where these conflict with the rights and powers of others. Thus, for example, the court has no power to prohibit a child being called to give evidence in a criminal trial and there are limits upon its powers to control interviews such as this.

vii) @ 828: The court has to weigh any potential harm to the child against the interests of justice. These are at least as strong where the defence wishes to interview potential witnesses as they are where the prosecution wishes to do so. The child's welfare cannot be the sole or overriding consideration.

viii) @ 828: Even if this is a matter in which parents have some responsibility it does not follow that it is a matter of the child's 'upbringing' in which by virtue of section 1 (1) of the 1989 Act the welfare of the child is paramount.

13. Lest it be thought that Re M might be regarded as persuasive if not conclusive of the issues before this court (having regard to the authorities therein cited and relied upon), Hale J. went on to record that in Re F (supra) Waite LJ had been prepared to assume that the general welfare provisions of section 1 of the Act applied to the case but went on to observe at page 823 that:

"I think it right to record that I am not aware of any authority in which the precise limits of a 'question with respect to the upbringing of a child' for the purposes of section 1 (1)(a) have been defined. It may be that in some other case, another day, it will be necessary to consider precisely the ambit of such a question".

This court is asked on behalf of the mother to examine that question in circumstances where (as distinct from the position before Hale J. in Re M) the essential question of permission is not agreed.

14. In Re F (supra) a father's defence solicitors wished to interview twin boys aged 11 to discover how much, if anything, either of them saw of an incident or its aftermath whereby the father was charged with assault occasioning actual bodily harm and indecent assault against their mother and affray. The mother refused to give her consent for the boys to be interviewed. A specific issue order was granted which was upheld on appeal.
15. In Re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1 Waterhouse J. in the course of holding that it would be a constitutional impropriety for the wardship court to intervene in the statutory process governing the conduct of a criminal trial and in matters within the jurisdiction of the Crown Court so as to grant or refuse leave for minors to be called as witnesses at a criminal trial went on to observe at page 11E:

"In many cases, the wardship court is likely to be involved at an early stage because leave will have been sought for the police to interview a ward. In such circumstances it is inevitable that the court will have to perform a balancing exercise, weighing the potential damage to the child against the public interest, as a responsible parent would do. In reaching a decision, the best interests of a child may not be the first and paramount consideration…".

Although the proposition appears not to have been in issue between the parties, the conclusion as to the test to be applied is the same as that of Hale J. in Re M.

16. In Re R (supra) a father charged with serious sexual offences against his three oldest daughters applied for permission to interview one of his sons who had been made a ward of court with a view to calling him as a defence witness at the trial. Having considered the ratio of Re K and in approving the same, Lord Donaldson MR said at 65H:

"This principle we would state in the following terms. Children, whether wards of court or not, are citizens owing duties to society as a whole (including other children), which are appropriate to their years and understanding. Those duties are defined both by the common law and by statute. In the context of the conduct of criminal proceedings in court, the definition and enforcement of these duties have been entrusted by law exclusively to the court in which the proceedings are being conducted and it is not for the wardship court, whatever the theoretical scope of its jurisdiction, to use that jurisdiction to interfere with the performance by the criminal courts of their lawful duties".

17. The settled basis of the decisions in each of these cases, whether express or implied, is that the grant or refusal of consent to the interview of a child is an aspect of parental responsibility that can be controlled by the court, in its modern jurisdiction by the use of a specific issue order but in any event in the inherent jurisdiction and that the test to be applied by the court is a balance of rights and interests within which the child's welfare is not the paramount consideration. The basis for the latter proposition appears to be that a reasonable parent would weigh their child's interests against the public interest and that parents, no more so than the wardship court in the exercise of its prerogative parens patriae jurisdiction, cannot rely exclusively on the child's interests where to do so would interfere with the rights of others i.e. where rights may conflict.
18. The historic origin of the distinct tests was analysed in Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1. In this well known case extensive media attention led to the child being protected by injunctive relief and the child's mother then sought to relax that protection believing that a television broadcast would benefit her daughter. In the course of an extensive review of the authorities at 30D Ward LJ held that:

"The disclosure by a parent of confidential information relating to the child is an exercise of parental responsibility. As already set out it can be restrained by a prohibited steps order. If the court is considering whether or not steps should be taken by a parent in meeting his parental responsibility for a child, then, beyond question, the court is determining a question with respect to the upbringing of a child. Welfare becomes the paramount consideration."

19. The elegant submissions of Mr James Munby QC (as then was) are reflected with approval in the judgment of Ward LJ. It was submitted that there are two aspects to the exercise of the inherent jurisdiction, namely the custodial jurisdiction which seeks to protect the welfare of the child and the ancillary jurisdiction which exists to protect the integrity of the court's own proceedings in the interests of the administration of justice. It is only in the custodial jurisdiction that upbringing is directly in issue i.e. the welfare of a child is being protected and the child's best interests prevail whereas in the ancillary jurisdiction where the child's interests are or may be in conflict with a third party, the court must conduct a balancing exercise.
20. Ward LJ dealt with the relevant legal analysis at 19F to 23A and in summary at 23B to 24C. In determining whether an aspect of parental responsibility that was susceptible of control by the court under section 8 of the Act or in the inherent jurisdiction was also a question of upbringing i.e. within the custodial rather than the ancillary jurisdiction of the court, after setting out examples of both species of decision at 28B to 29D, Ward LJ came to the following conclusion:

"In my judgment a question of upbringing is determined whenever the central issue before the court is one which relates to how the child is being reared"

It was in this context that the court decided that a parental decision to disclose a child's confidential information was on the facts of the case both an aspect of parental responsibility and a question related to the upbringing of the child.

21. It cannot be said that the decision in Re Z provides authority for the proposition that all aspects of parental responsibility are also questions relating to the upbringing of the child. The decision of that court was informed by the concept that there were distinct tests and that a choice had to be made. On the facts of Re Z the duty of confidence owed to the child was held to be absolute whereas the parent's right to decide what is in the child's best interests was not absolute and could be overridden. The decision was said to involve no conflict with any third party rights, rather the issue focused exclusively on the care of the child and the decision which her mother had made.
22. Mr Hayden also drew the court's attention to Re J (A Minor) (Wardship) [1984] FLR 535 per Wood J. and the authorities therein relied upon. Save that in common with those cases that have been cited above there is a recognition in the judgment of Wood J. that there has to be a proper balance between the protection of a ward and the rights of others, I do not think this takes the argument any further.
23. I return then to the key issue which is whether the decision to interview a child is exclusively a question within upbringing or whether there are competing interests to balance. No one doubts that consent to an interview is an aspect of parental responsibility nor that there are serious welfare considerations, but is such a question exclusively a matter concerning the rearing of a child or is it a question where the undoubted issue of that child's welfare interacts with the rights and interests of others?
24. In my judgment, there can be few clearer examples of the interdependence of rights than the role of the citizen in the criminal process of the state, no matter that that citizen is a child. The administration of criminal justice and the rights of others are clearly engaged and may well be in conflict with a simple welfare analysis.
25. It is undoubtedly helpful and in my judgment necessary to re-cast the question having regard to the enactment of the Human Rights Act 1998. Although, by reason of the urgency of this application, which has had to be interposed in a part heard list, I have heard no submissions on the point, it is necessary in my judgment to cross check the court's conclusion on the decided authorities with a modern interpretation of the rights engaged. If there are rights engaged other than the article 8 rights of the child then by analogy with the decision of the House of Lords in Re S(FC) (A Child) [2004] UKHL 47, [2005] 1 FLR 591 it would be necessary to conduct a balancing exercise between the competing rights, considering the proportionality of the potential interference with each right independently. That would support and arguably would be determinative of the test to be applied.
26. That the children's article 8 rights are engaged is clear. Article 8 embraces the right to maintain one's privacy or to waive that privacy and share what would otherwise be private with others (see Munby J. in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 1 FCR 481 at para [36]. Furthermore, the article 8 rights of the children, their brother and mother are all engaged in the context of the family life that exists between them and which is now compromised.
27. The article 6 rights of the defendant, their brother and the prosecution as respects the right to a fair trial are engaged and there is a clear interdependency between their brother's article 6 rights and both his and the girls' article 8 rights in so far as there is a risk that the he may be wrongly convicted and thereby wrongly deprived with his sisters of the family life which they would otherwise enjoy. Even as this judgment is written, the uncertainty over the interviews and the lack of knowledge as to what the girls may say has caused delay to the arraignment and a renewed bail application. It should also be noted that the article 6 rights that are engaged are absolute and arguably take priority over the article 8 rights against which they fall to be balanced.
28. I do not pretend to have described an exhaustive list of the rights that are engaged. I do not doubt that it would have been necessary to do so and that the proportionality of the interference with each of them would have had to be considered and balanced were the outcome of this application to have been in any doubt. However, for reasons that I shall shortly describe, I am of the clear view that the welfare balance comes down firmly in favour of the interview of the children by the Chief Constable and accordingly, the balance of rights on the facts of this case points in one direction only, namely, in favour of the application. Nevertheless, in my judgment the cross check with an analysis of rights confirms me in the view that there are multiple rights in play and that the appropriate test must be a balance of the same rather than a discrete welfare enquiry.

The Welfare Balance:

29. A joint expert opinion as to the welfare implications of the proposal to interview the children has been provided by a well known expert in the field, the consultant child and adolescent psychiatrist and trauma specialist, Dr Jean Harris-Hendricks. She was jointly instructed in circumstances of considerable urgency and as the court made clear, mother has at all relevant times had the right to obtain a second opinion. She advises that a failure to give the girls the opportunity to talk will only lead to an increase rather than a reduction in their anxiety about the incident. She opines that the children should have been interviewed before now and that their distress will be related to the actual events and their aftermath rather than the effects of the questioning i.e. the opposition to the interviews is based on a false premise, it is not the interview that will be detrimental to them but the incident itself and the failure to deal with same. She believes that it will be a relief to the girls to bring their knowledge into the open and that it is necessary and appropriate for them to speak about it.
30. This hearing has proceeded on the basis of submissions alone and that evidence has not been tested nor is it accepted by mother. The court is asked to be critical of it. Suffice it to say that the opinion is apparently cogent despite the lack of reasoning from first principles and that it follows what might be described as the conventional approach to trauma cases where a death has the potential to seriously affect children in a family.
31. Despite the opinions of their teachers and the play therapist employed by the local authority that they would expect the effect of the proposed interviews to be detrimental to the girls, the overview social work opinion is that it would be better to interview them now than rather than leave the process to some unknown date in the future.
32. The following factors are relied upon by the Chief Constable, the local authority and CAFCASS Legal:

i) At present, no-one other than the children's mother is able to discuss the incident with the children (including their teachers and play therapist) and accordingly their emotional needs remain un-assessed and are unlikely to be met

ii) The children are struggling to manage their feelings and would benefit from this need being directly addressed

iii) Allowing the children to talk will give them an opportunity to express their feelings (rather than remaining silent and having the burden of keeping a dreadful secret to themselves) and to understand that the death need not have happened and that the 'gun culture' is not a normal or acceptable way of life

iv) Once the children have had the opportunity to talk about the incident a reasoned assessment and planning process can be put in place to make provision for their emotional needs, including therapy

v) It is the incident itself rather than the interviews that is detrimental to their welfare

vi) Delay in accessing the children's knowledge of the incident will only increase their disturbance, not relieve it.

33. The process that is intended involves adherence to the 'Achieving Best Evidence' guidelines in a specialist family centre where ABE interviews are conducted and to engage the services of a well known Consultant Child Psychologist to advise the police officers who will undertake the interviews, both during the same and in the preparatory planning processes.
34. Mother relies upon the following factors in her submission that the interviews will of necessity be detrimental to the girls' welfare:

i) On any view they observed the killing of their 12 year old sister by their 16 year old brother

ii) The children have been (more accurately are likely to have been) severely traumatised as a consequence

iii) The school teachers give clear evidence of a marked deterioration in the girls' behaviour and an emotional crisis and disengagement from friends and work at school

iv) The play therapist is of the opinion that the girls are suffering from and are displaying the effects of unresolved traumatic loss

v) Their mother is of a similar opinion

vi) The recounting of the events will inevitably require a recollection of traumatic events

vii) The interview process will inevitably be unsupported by the family, in particular their mother and each other and will be outside any supported therapeutic process

viii) There may be a risk of the cessation of counselling if the view is taken that their evidence should not be contaminated before trial

ix) A process designed to meet the welfare needs of each of the girls would not involve interview but would instead proceed at their own pace in a 'therapeutic alliance'.

35. In addition, mother relies upon the evidential value of the proposed interviews in submitting that they should not be undertaken. She asserts that the age of the children and the need to undertake a detailed examination of acts that may be relevant to the brother's intention contra-indicate the utility of embarking on the same. That is also placed in the context of what is asserted to be the strength of the evidence that is already available to the prosecution.
36. As can be seen the welfare analysis is agreed until one gets to the ultimate question of whether the interview will be traumatic. I am sure no-one would disagree with the assertion that therapy whether subsequent to interview or so soon as it can be made available would benefit these children. On balance I prefer the submissions of the Chief Constable, supported as they are by evidence that is un-contradicted save as to the opinions of the teachers and play therapist. For the reasons I have set out above the real distress and likely harm in this case is more likely to be caused by the girls witnessing the incident rather than being interviewed about it and the sooner they can be given the opportunity to express their feelings about that the better.
37. I accept that were the only question to be that of welfare, the court would strive long and hard before it overturned the opinion of a reasonable parent. However, as Hale J said in Re M (@ 829), only in an extreme case might there be such great trauma, and so little to be gained by an interview, that it would be justifiable to refuse permission altogether. The balance of evidence does not support the opinion that the interview would cause such great trauma, quite the contrary.
38. As can be seen, had the test been simply a welfare consideration, I would found in favour of the Chief Constable and would have overridden the exercise of parental responsibility by the children's mother. In the circumstance that I must balance the rights of others with those of the children, there can be little or no doubt that the correct decision is to hold that the children should be interviewed. Although the evidential value of the interviews has been questioned, it can be seen from the circumstances to which this court has had regard that there are contrary opinions that are at least as cogent.
39. In this case there is no need to make a specific issue or prohibited steps order in the sense that there is a need for an order to be made that can be enforced. I am told by Mr Hayden that mother will respect the court's decision and that all that is required is a declaration that can be relied upon by the Chief Constable. Accordingly, I put the court's decision into a form that both the Chief Constable and the girls' mother will find acceptable and which will achieve the result that I intend.
40. On the 20^th July 2007 I made the following declaration: "It is lawful and in the best interests of KI and KW for the Chief Constable, his servants or agents, to interview each of them separately for the purpose of conducting the criminal investigation into the death of their sister and any offence with which the Third Defendant has been or may be charged without obtaining the consent of the Third Defendant who is the person who has parental responsibility for them". The reasons for the same are now contained in this judgment.
41. I have adjourned the originating summons without making either child a ward of court to abide the event of the receipt of the section 37 report from the local authority. This will enable the parties to obtain legal advice in relation to the contents of the report and to be represented on any further hearing that may be required before this court.

Judgment ends.