Just for Kids Law, R (on the application of) v Secretary of State for the Home Department

A statutory scheme governing juvenile covert human intelligence sources is lawful under Article 8 where it provides enhanced, individualised risk assessment, safeguards for welfare and security, regular review, limited authorisation periods and independent oversight. The scheme need not treat every child as vulnerable in identical terms, require an appropriate adult for every 16- or 17-year-old, impose an absolute limit on renewals, require specialist welfare consultation in every case, or prohibit intelligence being obtained concerning a juvenile’s parent. The relevant question on a systemic challenge is whether the scheme itself creates an unacceptable risk of unjustified Article 8 interference in a legally significant number of cases. A distinction between children aged 15 or under and those aged 16 or 17 in relation to appropriate adults was not irrational.

Just for Kids Law sought judicial review of the Secretary of State’s scheme for authorising and managing juvenile covert human intelligence sources. The claim challenged the scheme under Article 8 of the ECHR and alleged irrationality in requiring an appropriate adult for children aged 15 or under but not for 16- and 17-year-olds.

The challenge concerned safeguards in the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Juveniles) Order 2000 as amended, the Code of Practice and associated guidance. The central issues were whether the safeguards created an unacceptable systemic risk to children’s Article 8 rights and whether the age distinction was irrational.

1. Claim dismissed. The scheme operated by the Secretary of State was lawful. Neither ground of challenge was made out.
2. The use of a juvenile covert human intelligence source was liable to interfere with the child’s private life because of the risks to physical and moral integrity. On a systemic Article 8 challenge, the question was whether the scheme itself created an unacceptable risk of breach inherent in the system.
3. The scheme did not need to state that every child was vulnerable. It recognised that juveniles were more vulnerable than adults and required an enhanced assessment under Article 5 of the Regulation of Investigatory Powers (Juveniles) Order 2000 addressing physical injury and psychological distress. The assessment had to be directed to the individual juvenile and the proposed deployment.
4. The absence of express wording that the child’s best interests were a primary consideration did not render the scheme unlawful. Its substantive safeguards, including the risk assessment and duties under section 11 of the Children Act 2004, gave appropriate weight to the welfare and interests of the child.
5. For juveniles under 16, the appropriate-adult provisions were adequate. A parent or guardian remained the normal choice, but another person could be used where better qualified or where the parent was unsuitable. An employee of the investigating authority could not properly act because of the conflict of interest inherent in representing the source’s interests.
6. The absence of a mandatory appropriate adult for 16- and 17-year-olds was lawful and rational. Increasing maturity and independence justified case-specific assessment of whether support was necessary. The scheme still required the risks to be explained to and understood by the source, and allowed an appropriate adult to be appointed where appropriate.
7. Extending authorisations to four months did not weaken safeguards because monthly reviews, further reviews where necessary and proportionate, continuing assessment of welfare, and cancellation when authorisation was no longer justified remained required. An absolute limit on renewals was unnecessary. Nor was mandatory specialist welfare consultation required in every case, or an absolute prohibition on obtaining intelligence concerning a 16- or 17-year-old’s parent.
8. The distinction between children aged 15 or under and those aged 16 or 17 was not irrational. The claim was dismissed.

First-instance judicial review. No appellate history was stated in the judgment.