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Interviewing a ward of court

The judgment in Re Ward of Court [2017] EWHC 1022 (Fam) answers with a resounding “no”, the question of whether the court’s consent is required before the police can interview a ward of court. A simple point, one might think, but there was, according to Sir James Munby, President of the Family Division, a “startling lack of clarity in the law” on this issue [5].

A teenager was a ward of court. They were approached by an officer of the security service in circumstances relating to radicalisation. So as to ensure that there would be no identification either of the ward or of the local authority, Sir James took the unusual step of concealing in the judgment the case number, the dates of the hearings (which were not listed) and the names of leading counsel and of those who instructed them.

In resolving the issue of whether consent to interview a ward is required, Sir James had to weigh two competing principles: first, that no “important” or “major” step in the life of a ward can be taken without first obtaining the approval of the wardship judge and second, that the wardship court cannot exercise its powers so as to intervene on the merits in an area of concern entrusted by law to another public authority. The latter Sir James referred to as ‘the A v Liverpool City Council principle’, the House of Lords case which identified it: [1982] AC 363. One aspect of the A v Liverpool City Council principle is that wardship does not privilege a ward over a child who is not a ward and does not give a ward an immunity not available to other children.

Since the late 1980s, it had come to be thought that an interview was an “important” step which required judicial consent. In fact, according to Sir James, this asserted rule rested on very insubstantial foundations, as he demonstrated by reference to the authorities. The supposed rule was first discovered in In re S (Minors) (Wardship: Police Investigation) [1987] 3 WLR 847, where, it seems, no authority was cited on the point and no reference was made to either A v Liverpool City Council or related cases. Thereafter, the rule became entrenched when it was included in Practice Directions of 1987 and 1988. None of the authorities attempted to explain how the asserted rule could be reconciled either with the A v Liverpool City Council principle or with the ‘no privilege over other children’ principle [44].

Having to make an application to court before interviewing a ward gave rise to obvious problems for the police. Consequently, the Court recognised in the Practice Directions that, exceptionally, ex parte applications could be made and that where interviews needed to take place urgently, the ward could be interviewed without the court’s consent, provided the court was appraised of the situation at the earliest possible opportunity thereafter.

Despite these adjustments, the asserted rule continued to pose problems. For example, in Re G; Re R Note (Wards) (Police Interviews) [1990] 2 FLR 347, the Commissioner of the Metropolis raised concerns about the correct procedure when officers arrested minors who turned out to be wards of court. Under pressure to make the asserted rule work in practice, subsequent cases identified further exceptions, leaving the rule “hollowed out, almost to the point of extinction” [47].

With the introduction of the Family Procedure Rules 2010, what had previously been contained in the Practice Directions of 1987 and 1988 became subsumed in PD 12D. The law had therefore been left, since as long ago as 1990 in, an “exceedingly unsatisfactory” state and the Commissioner’s concerns had not been appropriately addressed [48].

In Re Ward of Court, Sir James concluded that there is not and never has been any principle or rule that judicial consent is required before the police can interview a ward of court. The asserted principle is impossible to reconcile either with the A v Liverpool City Council principle or with the ‘no privilege over other children’ principle. The relevant sections of PD 12D should be considered as a matter of urgency [45, [46] and [49].

Sir James made clear that the fact that a minor is a ward does not entail any additional obligations on police officers. When officers arrest a minor who is, in fact, a ward then they may properly proceed to interview him in accordance with their normal procedure provided, of course, that they comply with the provisions relating to all juveniles under the Police and Criminal Evidence Act 1984; they have no further duty to discharge. It will then be for the person having charge of the minor to notify the court of what is taking place or has taken place.

Albeit belatedly, Re Ward of Court simplifies the law and ensures that it is operationally workable; no longer should the fact of wardship pose an obstacle to interviewing officers.