Security services can approach ward of court without judicial consent: Munby

The security services do not need prior authority from the courts to approach a teenage ward of court, the President of the Family Division has said.

In A Ward of Court, Re [2017] EWHC 1022 (Fam) Sir James Munby gave no details of the case – which is allocated to another judge in the Family Division – but noted that “radicalisation is an issue in the proceedings”.

The judge revealed that when the local authority became aware of the approach it wrote to the security service suggesting this should have required prior authority of the court and that the officer in question was at serious risk of being in contempt of court”.

When the case came before him, the President said: “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.”

Sir James said that although arising in the context of the security services, the case’s issues could equally well have arisen in relation to the police, immigration enforcement or other investigatory, enforcement or regulatory agencies.

The judge said the issue with which he was concerned lay 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.”

Sir James said following analysis that a number of things, in his judgment, were “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.

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 seemed, 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 seemed 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 had 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.

The President continued: “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.”

The judge said the short point was that the asserted principle or rule that judicial consent was required before the police could interview a ward of court, was 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,” he said.

The consequence of all this was that, as matters stood, the position was “exceedingly unsatisfactory, to use no stronger word”.

The President said concerns raised by the Commissioner of the Metropolitan Police as long ago as 1990 had not been appropriately addressed, “although they remain at least as valid today as 27 years ago”.

Sir James said “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 was, the President concluded, “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, he said, police officers, officers of the Security Service and others in a similar position should follow the guidance given by Sir Stephen Brown P in his judgment in Re G; Re R Note (Wards) (Police Interviews).

The local authority had also queried what the position would be in relation to a child who was 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.

Sir James said that was “really a matter for another day”, but he added than in principle he could not see how the fact that the local authority is exercising its statutory powers in either of these wasysunder 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.”

Sir James added: “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…. or subject to immigration control….or involved in proceedings in SENDIST.”