A Ward of Court
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 04 May 2017 |
| Neutral Citation | [2017] EWHC 1022 (Fam) |
| Docket Number | Case number omitted |
| Court | Family Division |
| Date | 04 May 2017 |
[2017] EWHC 1022 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case number omitted
Judgment Approved
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I am concerned with a teenager who is the subject of proceedings brought by a local authority and who is also a ward of court. I propose to say nothing more about the circumstances of the case – which is allocated to another judge of the Division – except to note that radicalisation is an issue in the proceedings.
The specific issue with which I am concerned arises out of the fact that the teenager was approached by an officer of the Security Service – see the Security Service Act 1989 as amended – acting in the course of that officer's exercise of functions as an officer of the Security Service. That approach, so far as I can see, was entirely proper. The concern about what happened arises solely because the officer's approach was to someone who is a ward of court. When the local authority became aware of what had happened, it wrote to the Security Service suggesting that the approach should not have taken place without the prior authority of the court and that the officer was at serious risk of being in contempt of court.
The matter has been twice before me. On the first occasion, having heard Leading Counsel on an application made by the Security Service without notice, I made an order containing the following recital:
"UPON the Court being satisfied that there is no requirement for the Security Service to obtain the permission of the Court to fulfil its statutory functions in accordance with the Security Service Act 1989 in so far as its actions relate to the Ward of Court in these proceedings."
On the second occasion, having had the assistance of Leading Counsel for the local authority, I made an order containing the same recital.
It is quite clear to me, though I do not for obvious reasons propose to elaborate the point, that there is a pressing need, having regard both to the interests of the ward and of the operational requirements of the Security Service, that there should be no identification either of the ward or of the local authority. I have therefore taken the unusual step of concealing in this judgment the case number, the dates of the hearings (which were not listed) and the names of Leading Counsel and of those who instruct them.
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.
Before proceeding further, I need to emphasise that, although the issue has arisen in this particular case in the context of the activities of the Security Service, exactly the same point can arise in the context of the activities of, for example, police officers, officers of Immigration Enforcement and, no doubt, officers of other investigatory, enforcement or regulatory agencies.
I repeat, so that there is no room for misunderstanding, a point I made in paragraph 12 of Radicalisation Cases in the Family Courts: Guidance issued by Sir James Munby President of the Family Division on 8 October 2015:
"The police and other agencies recognise the point made by Hayden J [ The London Borough of Tower Hamlets v M and ors [2015] EWHC 869 (Fam), para 18(iv)] that "in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations." The police and other agencies also recognise the point made by Bodey J [ Y v Z [2014] EWHC 650 (Fam), para 30] that "it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.""
General principles
The issue with which I am concerned lies 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. Not much reflection is needed to appreciate the potential for tension between these two principles. The present case is a good example.
General principles: the A v Liverpool City Council principle
The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said, at p 795:
"Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court on the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred on them by the statutory code."
He continued, at p 797:
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority."
Lord Scarman was not of course disputing the High Court's power of judicial review under RSC Ord 53 (what is now CPR Pt 54) when exercised by what is now the Administrative Court. What he was disputing were the High Court's powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said, at pp 795–796:
"The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case."
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to the proper ambit of the powers of the wardship court.
What for convenience I shall call the A v Liverpool City Council principle has been reiterated at the very highest level on a number of occasions in recent years: see Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, and, very recently, N v ACCG and others [2017] UKSC 22.
The A v Liverpool City Council principle arises in many different and varied contexts. There are many cases to be found in the reports where a child is affected by some decision of a public official or a public body. Examples include (I list the examples in roughly chronological order and without providing exhaustive lists of the relevant cases) an education authority: see In re B (Infants) [1962] Ch 201 and In re D (A Minor) [1987] 1 WLR 1400; the Secretary of State for the Home Department in relation to a child subject to immigration control: see In re Mohamed Arif (An Infant) [1968] Ch 643 and R v Secretary of State for Home Department ex p T [1995] 1 FLR 293; a local authority exercising child care functions: see A v Liverpool City Council [1982] AC 363; criminal prosecuting authorities: see In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1 and In re R (Wardship: Criminal Proceedings) [1991] Fam 56; an adoption agency: see In re W (A Minor) (Adoption Agency: Wardship) [1990] Fam 156; the Secretary of State for Defence in relation to a boy soldier: see In re JS (A Minor) (Wardship: Boy Soldier) [1990] Fam 182; the Secretary of State for the Home Department in relation to a baby living with its mother in a prison mother and baby unit: see CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 2 FLR 517, and Islington London Borough Council v TM [2004] EWHC 2050 (Fam); 1 police decision-making in connection with police protection: see In re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam), [2010] 1 FLR 1026; the statutory duties of housing authorities: see Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413; and, very recently, the National Probation Service: see R (ZX) v The Secretary of State for Justice [2017] EWCA Civ 155 (the case involved an adult but the principle is the same).
In many ways, the modern starting point, albeit it pre-dated A v...
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