Re B (Children: Police Investigation)
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Peter Jackson LJ,Nugee LJ |
| Judgment Date | 15 July 2022 |
| Neutral Citation | [2022] EWCA Civ 982 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA 2022 000732 |
[2022] EWCA Civ 982
Lady Justice Macur
Lord Justice Peter Jackson
and
Lord Justice Nugee
Case No: CA 2022 000732
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE KEEHAN
ZC18P01363
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Horwell QC and Naomi Carpenter (instructed by the Commissioner of Police for the Metropolis) for the Appellant
Stuart McGhee (instructed by W Legal) for the 1 st Respondent
Anthony Metzer QC and Charlotte Proudman (instructed by Dawson Cornwell) for the 2 nd Respondent
Hearing dates: Tuesday 28 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down will be deemed to be Friday 15 th July 2022 at 10.30am.
Introduction
This appeal concerns an injunction made in the High Court prohibiting any person serving with the Metropolitan Police (“MPS”) from interviewing either of two specified 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”. The issue for this court to determine is whether the High Court (i) had inherent jurisdiction to do so, and if so, (ii) whether it should have exercised its powers to do so.
Background
The context for the making of the order is in long running and complex private family law proceedings in the Family Division. At least four of the judgments have been reported under the title of Re A and B (Parental Alienation) at [2020] EWHC 3366 (Fam); [2021] EWHC 2601 (Fam); [2021] EWHC 2602 (Fam) and [2021] EWHC 2603 (Fam). However, a sufficient and succinct history of events giving rise to the making of the order under challenge is provided in a judgment delivered by Keehan J on 24 March 2022 in the following terms:
“2. This case has a long and tortuous history. It has been before me for at least the last three years. The case has involved the instruction of a child psychiatrist, Dr Julet Butler, a renowned expert in high parental conflict cases, Dr Janine Braier, who worked in association with a colleague, Ms Karen Woodall. Dr Braier and Ms Woodall worked for an extensive period of time of at least 15 months with the mother, the father and the children to try and resolve the conflict between the parents.
3. They ultimately came to the conclusion that they had failed to do so, that the mother had not achieved the degree of change required and that she had turned the children against the father and if the children remain living with her it was undoubtedly the case that the emotional and psychological harm that the children had already suffered would be reinforced and would be detrimental to the children, not only for the balance of their minorities, but throughout the whole of their lives. It would have an adverse impact on their ability to form relationships with partners and would have an adverse impact on their own ability to parent their own future children.
4. Accordingly, having heard all the evidence and taking into account the expert evidence, I ordered a transfer of residence of the children from the mother to the father. The mother challenged that decision on appeal and that was unsuccessful.
5. In November 2020, the children moved to live with their father. There were two early episodes where they ran away. The police were involved to recover the children. They then appeared to settle. There were various applications made on behalf of the mother, including for the children to be joined as parties. I refused that application on the grounds [that] given the damage they had suffered their real and true wishes and feelings could not be established. …
6. The children appeared to be happy and settled in their father's care until the events of the summer of last year, 2021. The family travelled to the United States of America. Towards the end of that holiday, E ran away and went to the American police. He made allegations against his father. The police secured the [return] of [E] to his father and they returned home to this jurisdiction. ….”
At 7.20 am on 15 October 2021 an e mail was sent to the school which A attended, apparently signed by both children and which stated:
“My brother and I are victims, and we need help.
Currently our father, has custody of us. in the past we've been locked up, searched, hit, pushed, choked. Every time we take any action to leave, to get to a safe place, our father finds out and locks us up again and things get worse. With every day the things he does to us get worse.
We live in a state of constant terror. A constant paranoia that this day will be worse than the last. When our father causes trauma it goes unnoticed and we are told ‘he is learning to be a better parent’. He hurts us physically and breaks us mentally.
We have spoken to the police, repeatedly. We have spoken to social services. We have run away time and time again and no one believes us. Karen Woodall. Judge Keehan. Social services. These are the people and organisations that have failed time and time again to help us and get us out of this unsafe and horrible place.
We are writing because we are terrified, constantly subjected to further, worse hurt to scare us into pretending everything is fine and acting like everything is fine at school. If we tell anyone, ask for help, he will immediately find out, I am sure. And I am terrified of what that will lead to.
Now you know.
Now, if anything happens to us there are people that know where we are and what we are being subjected to that can help. If anything terrible happens to us and you don't do anything, the blood is on your hands.
Our address is … We are taking action soon, doing something about it, so if we are locked up, that is where we will be.”
The safeguarding lead at A's school notified the police. Police officers attended at the father's address and spoke to B, then aged 12. B confirmed the allegations made in the e mail. No injuries were seen and there was nothing of concern in his physical surroundings. He was taken to school whilst the officers decided on next steps.
A had already left for school. CCTV showed her arrival at the school gates but, after she was seen speaking on her mobile telephone, she departed. She was reported as missing. This prompted an urgent and ex parte application for collection and port alert orders.
By that time, it transpires that the father's solicitor had been notified by the mother's solicitor that the children would seek separate representation in the ongoing proceedings. Applications dated 14 October 2021, supported by a statement dated 15 October 2021 of Mrs Janet Broadley, an experienced family solicitor with “significant experience” in representing children, sought an ex parte order that they live “other than with their father until the application is properly and fully considered by the court”. The application was made ex parte “as they fear their father's reaction. They instruct me that they are petrified of their father and live in a constant state of fear of his emotional and physical abuse towards them that they can no longer cope with living with him and intend to run away such is their state of anxiety and distress.” She regarded the children as having provided her with clear and compelling instructions of their father's particularised physical and emotional abuse upon them since they had lived with him from November 2020.
Later that day MPS officers and Children's Services, without knowledge of the statement, decided to conduct a joint investigation. A social worker and police officers went to B's school to talk to him. As they were doing so the father arrived and asserted that a court order prevented them from speaking to his children. B was crying and told officers that he would be hurt if his father took him home. However, at 4.27pm that day the police officers received notification that an ex parte injunction in terms described by the father had been made.
There is no transcript of the without notice and ex parte proceedings before Keehan J on the 15 October 2021, and it is difficult to ascertain from an attendance note prepared by the father's solicitor, when in the ‘fast moving’ sequence of events that had been prompted by A's failure to attend school, the father's solicitors had been notified of the e-mail and its contents, or what detail and evidence was provided to the judge in support of the application. However, the consequent order, dated 15th October 2021 contained a recital in these 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 local authority] or elsewhere” from interviewing either A or B without the judge's “express order”. A further recital to the order provided that “This order shall have effect immediately, in advance of being sealed.”
That night, at 11.25 pm, counsel for the Commissioner of Police of the Metropolis made an urgent application to the out of hours Family Division judge seeking deletion of the words “the Metropolitan Police” from the order. The application was adjourned on notice to 18 October 2021.
On 18th October 2021, the order of 15th October 2021 was varied to replace the words “the 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...
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Graham's (Kathleen) Application
...), but in doing so they are not enforcing a duty owed to them as individuals.” [para 43] [38] In Re B (Children: Police Investigation) [2022] EWCA Civ 982, a case concerning an injunction to prevent police from conducting interviews with children in the context of ongoing family proceedings......