On 15th July 2022 the Court of Appeal agreed that a decision to refuse to allow the police to interview children,was wrongly decided. The court made an injunction prohibiting the police from interviewing two teenage children A and B without the judge’s express permission, unless they needed to determine if the children were at immediate risk of harm. The police appealed, saying the court did not have the power to make this injunction. The Court of Appeal held that a previous finding that the children were manipulated to make false allegations does not exclude the possibility that the recent allegations are credible, nor did that previous finding absolve the police from its responsibility to consider whether or not to investigate. The court had overreached its powers.
Background
This appeal came about in a very long running private law dispute, with at least four published judgments and a number of experts. Re A and B (Parental Alienation) at [2020] EWHC 3366 (Fam); [2021] EWHC 2601 (Fam); [2021] EWHC 2602 (Fam) and [2021] EWHC 2603 (Fam). The conclusion was that A and B could not remain living with their mother as they would suffer further serious emotional and psychological harm because she had alienated them from their father. The court ordered that A and B live with their father and they moved in November 2020.
Things did not go smoothly at the outset and the children ran away twice. However, then they appeared to be settled and happy in their father’s care until the summer of 2021. The family went on holiday to the USA whereupon B ran away, went to the police and made allegations against his father. The family then returned to the UK. Then on 15th October 2021 the children sent an email to A’s school to say that the father has ‘hit, choked and pushed’ them and that they lived ‘in a constant state of terror’.
The school notified the police who spoke to B, then aged 12 who confirmed the allegations but no injuries were seen. A had already gone to school but left and was reported as missing. The mother’s solicitors informed the father that the children would be seeking separate representation in court and had instructed a solicitor to whom they gave a detailed statement about their father’s abuse. The police and children’s services decided to conduct a joint investigation and went to B’s school. However, by 4.27pm the police were told that the father had been granted an injunction to prevent the interview.
The court order stated that the court was ‘satisfied’ the father had not abused the children and it was later amended to say that the police could speak to the children if they were at immediate risk of harm. The police objected, asserting that the court did not have the power to interfere with the operational decisions of the police to investigate criminal matters. The police made an application on 24th October 2021 to interview the children to assess whether there were allegations that required further criminal investigation. The father resisted. But the police did not seek to set aside the order in light of the court’s concerns about the emotional impact on A and B, instead asked for their application to be adjourned to provide further evidence. The police did not pursue that application.
On 15th December the father attended court ‘ex parte’ – without the attendance of any other party – and Ms Woodall, a therapist working with the children, gave evidence that A told her she had been repeatedly contacted by her mother via third parties and the mother instructed the children to make allegations against the father. The maternal grandparents were also involved. The court was very concerned to hear this and considered the children at ‘exceptional risk of significant harm’, reciting in the order that the mother should not be told in advance of a hearing listed in January 2022 and nor should the children attend school until after the hearing.
At the January hearing the court considered the existing police application to interview the children and ordered that the police should consider the report of Karen Woodall and then seek permission to withdraw its application. The police did not withdraw and the matter came back on 24 March 2022. The judge was clearly hostile to the police involvement, pointing out that other allegations made against the father had been found to be false. He refused the police application on the basis that the police had not taken into account the welfare interests of the children and he was ‘exceedingly’ worried about their well being, noting it was now 5 months since the allegations were made. He commented that the local authority were satisfied the children were safe and well – but it does not appear that the local authority spoke directly to A and B.
The Appeal
The police appealed on the basis that the judge overreached his otherwise extensive inherent jurisdiction and usurped the common law and/or statutory duties of the police in the detection, prevention, and prosecution of crime. The Court of Appeal were very unhappy with the ‘wholesale lack of discipline’ that then followed in preparing for the appeal to be heard and noted the ‘partisan slant’ of the mother’s skeleton argument which should not be ‘a vehicle for the pursuit of a partisan agenda in relation to other matters’. The father’s skeleton argument was not served until the morning of the hearing and did not deal with the issues at hand. Nor had there been original compliance with procedure when seeking the ex parte injunction – it seems the judge was not referred to the Practice Guidance (Family Courts: Without Notice Orders) [2017] 1 WLR 478. The police did not cite relevant authorities in October, to point out how ‘vanishingly rare’ are the circumstances in which a High Court Judge could make a prohibitory order against a public authority exercising statutory powers.
Analysis
The Court of Appeal agreed that in theory, the High Court has retained a parens patriae jurisdiction to prohibit a police officer from questioning the children. But exercise of that theoretical power must be seen in the light of a ‘considerable body of jurisprudence which has endured more than 40 years, conveniently summarised by Sir James Munby, President in A Ward of Court [2017] EWHC 1022 (Fam).’
The starting point are the words of Lord Scarman In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 at p 797:
“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”
The Court of Appeal noted that the facts as found by the family court may be influential but do not bind another public body from exercising a power based on “altogether different considerations.” (See R v Secretary of State for Home Department ex parte T [1995] 1 FLR 292.)
The Court of Appeal stated
Whether it was fair to categorise the MPS as taking “no account” of the welfare best interests of A and B is not the subject of this appeal, but the judge’s subsequent comparison of “welfare best interests” as against “simply the broad duty upon the police to investigate crime…”(emphasis provided) is suggestive that the judge had lost sight of the “altogether different considerations” which fall within the remit of other public bodies. As it is, I find the order of 15 October 2021, (as amended), impermissibly interferes with an operational decision made by the MPS regarding the scope and manner of the criminal investigation to be conducted into the circumstances of the case.
A previous finding that the children were manipulated to make false allegations does not exclude the possibility that the recent allegations are credible, nor did that previous finding absolve the police from its responsibility to consider whether or not to investigate.
Comment
An article by Hannah Summers gives some more background detail
EXCL:1/The Met Police have won an appeal after a judge made an order blocking them from interviewing two children who made allegations of abuse against their father.They are the subject of long and complex litigation involving 'parental alienation' claims. https://t.co/9zcDI51tyW
— Hannah Summers (@hansummers) July 17, 2022
Ms Woodall was not criticised by either court, but the article notes
While the important appeal shines a light on the interplay of powers between the Family Division’s emphasis on child welfare and the statutory duties of public bodies, the wider case also raises questions as to the extent and use of court appointed psychological experts in cases where allegations of “parental alienation” are raised.
In documents submitted to the court for the 28 June hearing the Met’s advocates highlighted the role of Woodall, writing: “The concern is as to the appearance or otherwise of her independence and that too much emphasis has been given … to the report and opinions of Ms Woodall in respect of the police speaking to the children. She is seemingly playing a large role in the Metropolitan police Service being unable to even have a preliminary talk with the children.”
A skeleton argument supporting the appeal from the mother’s legal team outlined her concerns that Woodall’s recommendations are relied on by the court despite her not being registered with the regulatory body the Health and Care Professionals Council.
Of course, this case does not shed any light on whether or not ‘parental alienation’ exists but rather is added to the sadly ever growing pile of cases that highlight the dispute between those who claim to be a victim of it and those who claim that a parent who alleges ‘parental alienation’ is simply seeking to cloak their own abusive behaviour. I suggest that reading the 2020 judgment shows very clearly where the truth lies here. The frustration of the first Judge and his grave concerns for the children are well founded. However, those concerns did cause him to fall into error. The police should have spoken to the children.
And I suggest that public trust and confidence in these type of very difficult cases is not assisted by the continued reliance on experts who are not subject to any external regulation. I have previously written about the need for all such experts to be regulated, if only to give parents a route of complaint. But at this current time, the Family Court System has rejected that need. I think this is a mistake. It simply feeds into the narrative of some that ‘parental alienation’ does not exist or is promoted by charlatans to protect abusive fathers. Whereas those of us who represent mothers and fathers in private law disputes are very clear that parents can and do alienate their children from the other parent and that the consequences of this can be severe and life long. But all of us would benefit from knowing that the experts who opine on such serious cases, have agreed to submit themselves to external regulation. And that we have to carefully weigh the impact on children of being encouraged to speak about allegations that may be false – against the harm done by not allowing their voice to be heard at all.
Further reading
Some useful discussion in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) about the instruction of unregulated experts, the court endorsing this position:
Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.