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Family Law

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Court of Protection Practice and Procedure Conference 2016

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28 AUG 2007

SPECIFIC ISSUE ORDER: Chief Constable of Greater Manchester v KI and KW (by their Children's Guardian, CAFCASS Legal), and PN [2007] EWHC 1837 (Fam)

(Family Division; Ryder J; 26 July 2007)

The court made a declaration that it was lawful and in the best interests of twin 7-year-old girls, who had witnessed their sister being shot with a gun fired by their 17-year-old brother, for the police to interview each of them separately for the purpose of conducting the criminal investigation into the death of their sister and any offence with which the mother had been or might be charged, without the mother's consent. The grant or refusal of consent to the interview of a child was an aspect of parental responsibility that could be controlled by the court, in its modern jurisdiction by the use of a specific issue order, but in any event in the inherent jurisdiction; the test to be applied by the court was a balance of rights and interests within which the child's welfare was not the paramount consideration. A reasonable parent would weigh their child's interests against the public interest, and could not rely exclusively on the child's interests where to do so would interfere with the rights of others. The key issue was whether the decision to interview a child was exclusively a question within upbringing or whether there were competing interests to balance. There could be few clearer examples of the interdependence of rights than the role of the citizen in the criminal process of the state, even if that citizen was a child: the administration of criminal justice and the rights of others were clearly engaged and might well be in conflict with a simple welfare analysis. In this case, had the test been simply a welfare consideration, the court would have found in favour of the police, on the basis that the real distress and likely harm was more likely to have been caused by the girls witnessing the incident, than by them being interviewed about it, and that the sooner the girls were given the opportunity to express their feelings about the incident, the better. Once the rights of others were balanced with those of the children, there could be little or no doubt that the correct decision was to hold that the children should be interviewed.

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