Greater Manchester Chief Constable v KI & Anor (Children) & Ors

Consent to interview a child is an aspect of parental responsibility, but the decision is not necessarily a question concerning the child’s upbringing. Where the interview concerns the investigation of crime, the court must balance the child’s welfare against the rights and interests of others, including the administration of criminal justice and fair-trial rights. The child’s welfare is therefore not automatically paramount. The court must assess the proportionality of the competing rights and the likely welfare consequences. An interview should be refused only in an exceptional case where it would cause very serious trauma and little would be gained. On the evidence, the children’s welfare and the wider balance of rights favoured police interviews without the mother’s consent.

The Chief Constable applied under the inherent jurisdiction, and by way of a specific issue application under the Children Act 1989, for permission to interview two seven-year-old children. They had witnessed the fatal shooting of their older sister by their teenage brother. The mother, who had parental responsibility, opposed interviews because of their possible psychological impact. The brother’s criminal proceedings and the investigation into firearms offences were ongoing.

The court considered whether the decision to interview was solely a question concerning upbringing, so that welfare was paramount, or whether it engaged competing public and Convention rights requiring a balancing exercise.

1. Permission. The Chief Constable’s application could be treated as an application for a specific issue order. The factors in section 10(9) of the Children Act 1989 were not exhaustive. The court also considered prospects of success, whether there was a serious issue to be tried, the public importance of determining the police agency’s powers, and the potential harm of granting or refusing permission.
2. Applicable test. Consent to interview a child was an aspect of parental responsibility capable of control by a specific issue order or under the inherent jurisdiction. However, the authorities established that the court must balance rights and interests where the child’s interests may conflict with the rights of others. Welfare was not the sole or overriding consideration. The concept of upbringing was confined to a question centrally concerned with how the child was being reared. A proposed criminal-investigation interview engaged the ancillary jurisdiction concerned with the integrity of legal proceedings and the administration of justice.
3. Convention rights. The children’s article 8 rights, and the article 8 rights of their mother and brother, were engaged. The brother’s and the prosecution’s article 6 fair-trial rights were also engaged. Consistently with Re S (FC) (A Child) [2004] UKHL 47, the court cross-checked its conclusion by balancing the competing rights and considering proportionality.
4. Welfare and outcome. The court preferred the expert and social-work evidence that the children’s distress arose principally from witnessing the incident and that allowing them to speak would relieve anxiety and enable appropriate therapeutic support. The evidence did not demonstrate the exceptional level of trauma and limited benefit which could justify refusing an interview. It was lawful and in the children’s best interests for the Chief Constable or his agents to interview them separately without the mother’s consent. A declaration was sufficient; no enforceable specific issue or prohibited steps order was required. The originating summons was adjourned pending the local authority’s section 37 report.