M (Children)

A court exercising its inherent jurisdiction in care proceedings may permit a child in care to be interviewed by the solicitors of parents facing criminal charges. The decision requires a balance between the child’s welfare, including psychological risk, and the strong need for justice in the criminal trial. Uncertainty about whether the child has relevant information is not, by itself, a reason to refuse an interview. The interview must be confined to matters directly relevant to the prosecution and may be subject to protective conditions. An application for expert examination is properly refused where it is a blanket request identifying neither the expert nor the expertise and purpose required. A renewed application may be made on coherent grounds for a specified expert and purpose.

Care proceedings concerned four children whose parents were facing serious criminal charges relating to assault and cruelty. The parents sought orders to assist their criminal defence. They applied for the boys to be examined by experts and for the parents’ criminal solicitor to interview M, one of the children, to obtain a possible witness statement.

HHJ Cahill QC, sitting as a deputy High Court Judge, refused both applications. The Court of Appeal heard the parents’ appeal urgently before the anticipated criminal trial. The central issues were whether the court had jurisdiction to authorise an interview with a child in care and whether the judge had exercised her discretion on a proper basis.

Wall LJ gave the leading judgment, with Holman LJ agreeing. The appeal was allowed in relation to M’s interview but dismissed in relation to the proposed expert examinations.

1. The application for expert examination was properly refused. It was a blanket request for disclosure to any expert of the parents’ choice. No expert, relevant expertise or specific purpose had been identified. That lack of specificity made the application hopeless, particularly so shortly before the criminal trial.
2. The parents were not shut out from making a fresh or renewed application. Such an application would need good reason, an identified expert, a particular and specified purpose, and a coherent evidential basis. The only potentially relevant issue identified was whether existing scars remained observable and could assist in deciding whether injuries were deliberately or accidentally inflicted.
3. The court’s inherent jurisdiction to authorise a child who is in care, or subject to a care order, to be interviewed by the parents’ solicitors in the context of criminal proceedings was established by Re M (Care: Leave to Interview Child) [1995] 1 FLR 825. The judge had proceeded on the faulty premise that M had nothing to contribute. The allegations indicated that she might have witnessed relevant events. Her reliability was a matter to be assessed, not a reason to refuse permission in advance.
4. The discretion required a balance between welfare considerations and the strong need for justice in the criminal trial, applying the guidance identified in Re M and Re R (a minor) (Wardship: Criminal Proceedings) [1991] FLR 56. The court accepted the local authority’s concerns about M’s psychological state, but concluded that an interview concerning matters specifically related to the prosecution was proper. Whether M should give evidence remained a matter for the criminal trial judge.
5. Permission was subject to safeguards. The local authority was to choose the date, time and place; M’s social worker was to be present; and the interview was to be conducted by the named qualified solicitor responsible for the parents’ criminal defence. The privilege of any resulting document was not decided. Any child-protection issue arising during the interview could be addressed confidentially in the care proceedings. The question of contact was outside the appeal.

1. Court of Appeal (Civil Division) allowed the appeal in relation to M’s interview and dismissed it in relation to the proposed expert examinations.
2. Leeds County Court: HHJ Cahill QC refused permission for the boys to be examined by experts and for M to be interviewed by the parents’ criminal solicitor.