Greater Manchester Chief Constable v KI and Another (Children) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 2007 |
| Neutral Citation | [2007] EWHC 1837 (Fam) |
| Date | 2007 |
| Court | Family Division |
Specific issue order – Inherent jurisdiction – Child’s interests – Twin children witnessing murder of sister – Chief seeking specific issue order for permission to interview twins – Whether child’s interests being paramount consideration.
The twins, aged seven, were the only eye witnesses present when their 16-year old brother shot dead their 12-year old sister. The brother (who was refused bail) indicated that it was an accident. The mother had sole parental responsibility for the twins and admitted possession of the gun and was charged with firearms offences. She declined to give her consent to the twins being interviewed by the police on the basis it would have a detrimental effect on them (the brother was also opposed to them being interviewed). However, expert psychiatric evidence indicated that it would be beneficial for the twins to be able to speak openly and that they should be interviewed. The chief constable, supported by the local authority and CAFCASS Legal, sought a specific issue order under s 8 of the Children Act 1989 or, alternatively, a declaration under the inherent jurisdiction of the High Court granting him permission to interview the twins. The mother opposed the application, arguing that as these were family proceedings the welfare of the children was paramount and that interviewing them would only increase the trauma they have suffered.
Held – The grant or refusal of consent to the interview of a child was an aspect of parental responsibility that could 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 was a balance of rights and interests within which the child’s welfare was not the paramount consideration. In the instant case, the paramountcy principle was only one of the factors to be taken into account. The seriousness of the criminal proceedings outweighed any potential further trauma. Accordingly, the declaration sought by the chief constable was granted.
Cases referred to in judgmentF (minors), Re[1995] 2 FCR 200, [1995] 1 FLR 819, CA.
J (a minor) (wardship), Re [1984] FLR 535.
K and ors (minors) (wardship: criminal proceedings), Re [1988] 1 All ER 214, [1988] Fam 1, [1987] 3 WLR 1233.
M (minors), Re[1995] 2 FCR 643, [1995] 1 FLR 825.
R (ward: witness), Re [1991] FCR 642; sub nom Re R (a minor) (wardship in criminal proceedings) [1991] Fam 56, [1991] 2 WLR 921; sub nom Re R and Ors (minors) (wardship: criminal proceedings) [1991] 2 All ER 193.
Roddy (a child) (identification: restriction on publication), Re; Torbay BC v News Group Newspapers[2003] EWHC 2927 (Fam), [2004] 1 FCR 481, [2004] 2 FLR 949.
S (a child) (identification: restriction on publication), Re[2004] UKHL 47, [2004] 3 FCR 407, [2004] 4 All ER 683, [2005] 1 AC 593, [2004] 3 WLR 1129, [2005] 1 FLR 591.
Z (a minor) (freedom of publication), Re[1996] 2 FCR 164, [1995] 4 All ER 961, [1997] Fam 1, [1996] 2 WLR 88, [1996] 1 FLR 191, CA.
ApplicationThe Chief Constable of Greater Manchester applied, under the inherent jurisdiction of the court, for an order or a declaration that had the effect of granting him permission to interview two young girls, KI and KW, in relation to the murder of their sister. They are the first and second defendants. The third defendant is the children’s mother, NP. The local authority, Manchester City Council, were represented as an interested party. The facts are set out in the judgment.
Gillian Irving QC for the claimant.
Steven Parker for the first and second defendants.
Anthony Hayden QC and Alexander Kloss for the third defendant.
Rachael Heppenstall for Manchester City Council.
RYDER J. 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 s 37 of the Children Act 1989.
[2] KI and KW were born on the 14 January 2000 and are therefore seven years of age. The un-contradicted facts upon which the application relies are that on the 30 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 5 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 25 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 s 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 s 10(4) and 10(1) of the Act ie he is not entitled as of right to ask for an order under s 8. In the event no party objected to permission being given and having regard to the provisions of s 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 s 1 of the Act apply;
ii) The factors set out in s 10(9) are not exclusive but must all be considered;
iii) The court...
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R v Imran Rashid
...(and, where necessary, distinguished) relevant authority, including the decision of Ryder J., as he then was, in Greater Manchester Chief Constable v KI & Anor (Children) & Ors [2007] EWHC 1837 (Fam). We do not accept in particular that the judge failed to consider the effect of the hearsay......