Re B (Children: Police Investigation)

The High Court retains a parens patriae jurisdiction over children who are not wards of court or subject to care proceedings, and that jurisdiction can theoretically reach an order preventing police questioning. Its exercise is tightly limited. The Family Division cannot intervene on the merits of an area entrusted by Parliament to another public authority, or substitute its welfare assessment for the police’s operational judgment about investigating suspected crime. Welfare is relevant, but it is not automatically paramount in that setting. Earlier family-court findings do not prevent the police assessing later allegations. A prohibitory injunction against police investigation will therefore be exceptional and, on these facts, was impermissible.

The appeal arose from long-running private family proceedings concerning two teenage children. After an email alleging serious abuse was sent to a school, the Metropolitan Police sought to interview the children as part of a criminal investigation. The High Court made an ex parte injunction in October 2021, later varied, preventing MPS officers from interviewing them except for immediate safeguarding purposes. Keehan J refused the MPS application in March 2022 to vary or discharge the injunction, relying on the children’s welfare and the risk of psychological harm.

Permission was granted on grounds challenging the High Court’s power to restrain the police. The central questions were whether the Family Division had the relevant inherent jurisdiction and, if so, whether it was proper to exercise it in this way.

1. Disposition. The appeal was allowed and the extant injunction directed to the Metropolitan Police was set aside. Macur LJ held that the High Court had the relevant jurisdiction in theory, but should not have exercised it. Peter Jackson LJ and Nugee LJ agreed.
2. Limits of the jurisdiction. The High Court retains a parens patriae jurisdiction even where children are neither wards of court nor subject to care proceedings. That jurisdiction is constrained by the principle identified in A Ward of Court [2017] EWHC 1022 (Fam) and Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam). Under A v Liverpool City Council [1982] AC 363 and In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, the Family Division cannot intervene on the merits in an area of concern entrusted by Parliament to another public authority. Judicial review remains a distinct jurisdiction.
3. Different public functions. Family-court findings may influence another public body but do not bind it where it acts on altogether different considerations, as explained in R v Secretary of State for Home Department ex parte T [1995] 1 FLR 292. The police have a core duty to protect the public, including by detecting and preventing crime, although they need not investigate every crime. Decisions about which offences to investigate and how to conduct an investigation are operational decisions. The cases of R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin) and R (Soma Oil and Gas Limited) v Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) illustrated the courts’ usual reluctance to interfere with such decisions.
4. Application. Welfare considerations were relevant but not paramount. The judge impermissibly treated the question as one for the Family Court to decide, requiring the MPS to justify its decision to interview the children. Earlier findings that the children had been manipulated into making false allegations did not exclude the possibility that later allegations were credible, nor absolve the police from deciding whether and how to investigate them.
5. Urgent applications. Nugee LJ added that ex parte injunctive relief may be granted where urgency or the risk of frustration requires it. Fairness ordinarily requires service of the evidence relied on, a full note of the hearing, and a properly drawn, sealed and served order as soon as possible.

• Court of Appeal (Civil Division) — The appeal by the Metropolitan Police was allowed. The extant injunction restricting police interviews was set aside.
• High Court of Justice, Family Division — Keehan J refused the MPS application to vary or discharge the injunction and maintained the restriction on interviewing the children.