Re B (children: police investigation)
| Jurisdiction | England & Wales |
| Judge | MACUR,PETER JACKSON,NUGEE LJJ |
| Judgment Date | 15 July 2022 |
| Court | Court of Appeal (Civil Division) |
Jurisdiction – Injunction prohibiting police from interviewing children involved in private proceedings – Parens patriae – Whether family court entitled to restrict powers of a public body on grounds of child’s welfare.
Practice and procedure – Procedural irregularities – Failures to adhere to rules and directions – Deficiencies in skeleton arguments.
In long-running and complex private family law proceedings, the judge made findings, based on the evidence of experts in high parental conflict cases, to the effect that the mother had turned the two children against the father. The judge accepted that the emotional and psychological harm that the children had already suffered would be reinforced if they remained with the mother and that this would be detrimental to the children throughout their lives. He therefore ordered a transfer of residence to the father, which happened in November 2020. After a few early episodes in which the children ran away, they appeared to settle happily in the father’s care. However, in the summer of 2021, during a family holiday in the US, the younger child went to the US police and made allegations against the father. The child was eventually returned to the father and they all returned to the UK.
An application was made for an ex parte order, dated 14 October 2021, supported by a statement from an experienced family solicitor, dated 15 October 2021, seeking that the children live ‘other than with their father until the application is properly and fully considered by the court’. The explanation for this being ex parte was that ‘they fear their father’s reaction.’ The solicitor regarded the children as having provided her with clear and compelling instructions of the father’s particularised physical and emotional abuse of them since November 2020.
On the same day, 15 October 2021, an email was sent to the school attended by the elder child, apparently signed by both children. It made very serious allegations about abuse by the father; the children described themselves as: ‘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.’ This email led to the police going to the father’s address and speaking to the younger child, then aged 12. He confirmed the allegations made in the email. No injuries were seen and there was nothing of concern in his physical surroundings. He was taken to school. The elder child had already left for school, but, after she arrived there, she had a brief conversation with someone on her mobile phone, left and was reported as missing. The father was informed and an urgent ex parte application was made for collection and port alert orders. (She was eventually found.)
Meanwhile, on the same day, police officers and children’s services decided to conduct a joint investigation. A social worker and officers therefore went to the younger child’s school to talk to him. However, the father then arrived, claiming that a court order prevented them from speaking to either child. The younger child 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 had indeed been made, in the terms described by the father. The order, dated 15 October 2021, contained a recital that the court was ‘satisfied that the Father had not acted inappropriately towards either of the children’ and prohibited ‘the Metropolitan Police’ and ‘Children’s Services at [the local authority] or elsewhere’ from interviewing either child 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 11.25pm the Commissioner of Police urgently applied for deletion of the words ‘the Metropolitan Police’ from the order. This was adjourned on notice to 18 October 2021. On 18 October the order of 15 October 2021 was varied to replace the words ‘the Metropolitan Police’ with ‘any person serving with the Metropolitan Police’ and now provided 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.’ The father was directed to disclose to the MPS, amongst other things, medical and therapist reports, judgments and orders, and the statement by the children’s solicitor. Counsel for the MPS asserted that the order of 15 October overreached the court’s powers and drew attention to deficiencies in the process leading up to the making of the order.
At a hearing on 25 October 2021 at which all parties were represented, counsel for the MPS explained that the police view was that the documents disclosed indicated possible emotional or physical abuse. Officers had tried to speak to the children on 22 October to ascertain whether an ABE interview was required, but the father had been resistant to this. The judge made an unsealed order recording that 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 children’s allegations and adjourned to 19 November. On 19 November, the judge dismissed the application for the children to be separately represented.
On 15 December 2021, at an ex parte hearing requested by the father, a therapist working with the children, gave evidence that the day before the elder child, in the father’s presence, had revealed that she had been repeatedly contacted by the mother, through third parties. This was said to involve a third party giving the children notes, instructions, and phones, and arranging calls between the children and the mother, who then instructed the children to make allegations that the father had harmed them. The maternal grandparents were said to be involved, using threatening behaviour towards the elder child in particular. The therapist claimed that trackers had been given to the children, so that the mother would know where they were at all times. The ultimate plan was said to be a move to the USA. The judge accepted that it would put the children at grave risk of significant harm if the mother knew of the next hearing, and that, given the therapist’s evidence, it would be appropriate for the children to stay away from school until after that.
At a hearing on 19 January 2022 an order was made asking the police to read the therapist’s report and to consider withdrawal of their application; if the application went ahead it was to be accompanied by a full and detailed explanation from a suitably qualified senior officer as to why it was going ahead. When the MPS’s application did go ahead, on 24 March, the judge rejected it, stating that the local authority ‘have satisfied themselves that the children are safe and well in the care of their father and there is no future role for them to play to ensure the safeguarding of either child.’ The judge was very concerned about the welfare of the children and the potential emotional and psychological harm that would be caused to them if they were questioned about what they had alleged against the father and what they were now saying about the mother.
The MPS appealed, arguing that there was no jurisdiction to make an order of this type. Directions were made as to the structure of bundles and a timetable was given for service of skeleton arguments. These were not complied with in a variety of ways.
Held, allowing the appeal—
(1) A wholesale lack of discipline had been evident in the preparation of this case. There had been a failure to adhere to the Practice Direction relating to the core bundle. The index had been shambolic. The inclusion of irrelevant documents had been at the expense of a document of significant relevance (the transcript of the ex parte proceedings on 15 October). A draft order and unsealed orders had been included. An attempt should have been made to obtain sealed court orders, even those that were said to be effective immediately, prior to sealing and service. The mother’s skeleton argument contained gratuitous detail and there had been no attempt in the father’s skeleton argument, served only on the morning of the appeal, to engage with the legal issue in the appeal. CPR PD 52A, paras 5.1 and 5.2 or CPR PD 52C, para 31 required skeleton arguments to set out concisely the arguments upon which a party intended to rely in respect of the issues before the court, and to define and confine the areas of controversy. A skeleton argument was not a vehicle for the pursuit of a partisan agenda in relation to other matters. That this court had not rejected bundles or any of the contents, for non-compliance with recognised procedure and the failure to identify essential reading in amongst a core bundle exceeding 1300 pages, reflected the urgent need to hear an appeal which had 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 were concerned (see [30], [31], [33], [35], below).
(2) A similar lack of discipline had been demonstrated by procedural deficiencies preceding the making of the original oral application for an injunction, without notice and ex parte. Presumably the judge had not been referred to the Practice Guidance (Family Courts: Without Notice Orders) [2017] 1 WLR 478, as there had been a lack of compliance with this in several respects. In particular, the father’s legal team had been unable to explain why it had been deemed necessary to make the application ex parte without notice. Also, there was no indication of how the recital...
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