Re M (Minors) (Solicitors' Interviews)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
HALE, J
Children – application for leave to interview children for purposes of preparing defence in criminal proceedings – children subject to care proceedings – whether interview should be recorded on video-tape – whether social worker should conduct interview – correct procedure to be adopted.
Two boys, aged 10 and 8, were the subject of interim care orders in care proceedings commenced in December 1994. Allegations of sexual abuse were made against the father of the boys by the daughters of the father's present partner. The father was charged with rape and application was made to the court by the father's solicitor for permission to interview the two boys to enable the father to prepare his defence to the criminal charge. The application was not opposed in principle by the local authority, however no agreement was reached regarding the conditions under which the interview should be carried out. The father's solicitor wished to interview the boys himself, accepting that the interview should not take place until the Crown Prosecution Service indicated a firm intention to continue with the prosecution against the father, that the father should not be present during the interview, and that the guardian ad litem and/or a social worker might be present at the interview if they wished. The local authority wished to arrange for the interview to be recorded on video, and to be conducted by a person who had received training in conducting interviews in accordance with the Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses in Criminal Proceedings. Although the person conducting the interview would consult with the father's solicitor, the local authority did not wish the solicitor to put questions directly to the children.
Held – It was not entirely clear whether an interview with a child should be regarded as an aspect of parental responsibility. However in Re F (Minors) (Solicitors' Interviews)[1995] 2 FCR 200 the Court of Appeal had upheld a Judge who had dealt with a similar application by way of a specific issue order, thus suggesting that a matter of this nature did involve an aspect of parental responsibility. The local authority had acquired parental responsibility for the two boys by reason of the interim care orders, and the authority considered it necessary to impose conditions upon the proposed interview. Unlike in the case of Re F (above), a specific issue order could not be made as the two boys in question were in the (interim) care of the local authority. The power under s 38(6) of the Children Act 1989 (to give directions for medical or psychiatric or other assessment of a child) was not of assistance, as the interview of the two boys was clearly not intended to help to determine issues in the care proceedings. Despite observations made in Re KDT (A Minor) (Care Order: Conditions)[1994] 2 FCR 721, there was no statutory authority for the existence of a wider power to control the local authority's exercise of its powers under an interim care order. The inherent jurisdiction of the court (available as the result could
not be achieved by any other kind of order under the 1989 Act), could be invoked; however this would depend upon the local authority showing that the boys were likely to suffer significant harm if the jurisdiction were not exercised. Although there was no equivalent statutory restriction upon the father's right to invoke the inherent jurisdiction, the court (applying the principle in A v Liverpool City Council [1982] AC 363), would not exercise that jurisdiction in such a way as to interfere with the discretionary powers given to the local authority, unless the local authority did not object to such action. It was accepted that there were limits upon the powers of the court to control interviews of this kind, although any potential harm to the child would have to be weighed against the interests of justice. The childrens' welfare could not be the sole or overriding consideration. It did not follow that this was a matter relating to the child's upbringing to which s 1(1) of the Act would apply. The interests of justice in permitting the father's defence to be properly prepared should come first. It was the responsibility of the father to ensure that this was done with the minimum of trauma to the boys, although there was no evidence that the nature of the questioning to be conducted would be seriously detrimental to them. There were a number of good reasons for recording the interview on video, particularly in relation to affording a degree of protection to the children...
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