Court 20
Before MRS JUSTICE HOGG
Monday, 7 July, 2008
At 10:30 AM IN OPEN COURT

FD07P01121 McCann Applications/Summonses in Court as in Chambers IN THE MATTER OF MADELEINE BETH MCCANN

Mr Tim Scott, Q.C., International Family Law Group, acting for Gerry and Kate McCann:

Madeleine McCann is a ward of Court. She had her 5th birthday on 12 May 2008. Gerry and Kate are not here as they are on holiday with their twins, Sean and Amelie. Who could deserve a holiday more after a period more traumatic than any family should have to cope with.

Mrs Justice Hogg:

I did not expect to see them.

Mr Tim Scott:

As the world knows, Madeleine was abducted from an apartment at a resort in Praia Da Luz in Portugal on 03 May 2007. No one has ever been arrested or charged in connection with her abduction. Her whereabouts are completely unknown. There is no proof that she is alive, but there is not a scrap of evidence that she is not. After the abduction Gerry and Kate McCann set in motion their own search with professional assistance. A Fund was set up to finance the search and many people, often those who could barely afford it, have given generously to that fund. Simultaneously a massive international police search was launched. Since the McCann family lives in Leicestershire, the Leicestershire Constabulary has been the lead force among UK law enforcement agencies. Gerry and Kate would like, through me, to acknowledge the enormous effort which has been devoted both by the Leicestershire Constabulary and by other law enforcement agencies to the search for Madeleine. They would also like to thank many individual officers for the kindness and concern which they have shown to the family throughout this terrible time. Proceedings were started in this Court by a summons dated 17 May 2007. The sole purpose of the proceedings has been to call upon the extensive powers of the High Court to require assistance to be given in the search for a missing child. It is of course quite routine in the Family Division for such Orders to be made. For example in an appropriate case (though not this one) an Order can be made against a mobile phone company to produce the call record of a phone. It was never the parents’ wish that the proceedings should become adversarial. On 22 May 2007 an Order was made by you in very wide terms requiring any person on whom the Order was served to disclose to the parents’ solicitors any information which might assist in identifying Madeleine’s whereabouts. The Order contained a clause entitling any person served with it to apply to discharge or vary it. Among the bodies on whom the Order was served was the Leicestershire Constabulary, who immediately expressed doubts as to whether the Order was intended to or could properly extend to them. In due course the parents’ solicitors issued a further application seeking clarification of this. On 02 April 2008 you gave directions which were intended to lead to a hearing at which this question would be resolved. This is that hearing. As the preparations for this hearing advanced, it became clear that the Leicestershire Constabulary and other law enforcement agencies, while personally sympathetic to the position of the McCann’s objected on principle to the disclosure of at least the great bulk of the information in their possession. They raised a number of legal arguments relating among other matters to the public interest in maintaining the confidentiality of police investigations. Both the Serious Organised Crimes Agency and the Attorney-General intervened in the proceedings in order to advance their own arguments on issues of public policy. It became clear that if today’s hearing proceeded on a fully contested basis a number of areas of law of great interest to lawyers would have had to be considered. However Gerry and Kate McCann are not lawyers and so far as they were concerned the legal proceedings were moving further and further from the only matter which concerns them: the search for Madeleine. The proceedings were in danger of becoming a distraction from rather than an aid to that single goal. Also there have been two recent developments which have greatly affected Gerry and Kate’s views on these proceedings. The first is that the Leicestershire Constabulary has now agreed to release an important, though limited, part of the information which they have been seeking; I shall come back to that. The second is that, as has been widely publicised, it is expected that Gerry and Kate’s status in Portugal as arguidos or suspects will be lifted soon. When that happens it is hoped and expected that a substantial further amount of information will be released. Since Gerry and Kate have always wanted to work with all law enforcement agencies on a cooperative basis, they decided to withdraw the application against the Leicestershire Constabulary. We therefore come to Court today to ask you to approve an Order which all parties consent to. The first part of the Order recites that the Chief Constable of Leicestershire has agreed to provide by today a document in accordance with Paragraph 50 of the Skeleton Argument which has been presented to the Court on his behalf. That Paragraph is at 34. It says that the Chief Constable is currently preparing a document which will provide the parents with the contact details of persons that have been forwarded to the investigation by the parents or those acting for them. This document will also contain a brief resume of the information that it is believed the person informed the parents or those acting for them that they wished to pass on to the investigation. I said earlier that this is an important but limited amount of the information which Gerry and Kate had hoped to obtain. I would like to explain why it is important. Although the Leicestershire Constabulary were quick to set up a major incident room and to provide a telephone number which anyone with information could call, there was a period of time before this became widely known. During that time Gerry and Kate’s solicitor, Ms Ann Thomas of The International Family Law Group, who sits in front of me, had already been retained. Her firm’s number was publicised and a large number of people called in. All of these callers were given the number which the Leicestershire Constabulary had set up for the purpose. The solicitors thought it right that the police should be receiving it. In fact with few exceptions the solicitors did not even retain any notes on what the callers were saying or even their contact details. So what the Chief Constable is now voluntarily providing is the contact details and a summary of the information provided by a substantial number of people who were among the first to try to help the investigation. It is because these were on the whole people who came forward to volunteer information in the period immediately after the abduction that it is likely that the information which they provided will be most helpful. So on that basis Gerry and Kate McCann are content to withdraw their application for any wider disclosure. Paragraph 4 of the Order provides that the documents in the case shall remain confidential to the Court. This of course is completely normal in wardship. An exception is made to enable the Chief Constable at his discretion to reveal the contents of his evidence and the legal arguments advanced on his behalf. The parents understand that the points of principle which have arisen are of wider interest to law enforcement agencies, and they would not want to restrict proper discussion of those matters which might have a beneficial purpose in future investigations. They are confident that the Chief Constable will exercise his discretion in a responsible way. The search for Madeleine continues. The fund which was established in May 2007 known as “Madeleine’s Fund – Leaving No Stone Unturned” remains closely involved in the search. It always has been and remains Gerry and Kate’s purpose to leave no stone unturned. This was why they asked for the assistance of this Court in the first place, and this is why, in the light of developing circumstances, they now withdraw their application. We hope that you will accept, and will feel able to say that they have behaved completely properly and responsibly at every stage.


Mr James Lewis QC, for the Chief Constable of Leicestershire:

We would like you to approve the Order. As the Court heard, any person served with the Order should disclose any information that would help to find Madeleine . We wish to make it clear that the primary aim is to ensure that no stone is left unturned. There must be a balance between the rights of Plaintiffs to have as much information as possible and the risk of compromising the continuing criminal investigation, damaging future international co-operation, and a potential breach of Portuguese law. The parents get information that emanates from them and there is no breach of Portuguese law. The Chief Constable asks the Court to make clear that previous Orders don’t apply. The case is not closed. The Chief Constable wishes to reiterate anyone with information should come forward to the police. The amount of information is 81 pieces of information out of 11,000 pieces of information on the computer system.

Representative of the Attorney General:

The Attorney General intervened as Guardian of the public interest and has no further comment to make.

Mrs Justice Hogg:

Madeleine went missing on 3 May 2007 just a few days before her 4th birthday, while she was holidaying with her family in the Algarve in Portugal. On 17 May 2007 Madeleine’s parents invoked the jurisdiction of this Court under the Inherent Jurisdiction of the Court, and The Child Abduction and Custody Act, and the Hague Convention. They sought various orders and directions aimed at ascertaining the whereabouts and recovery of Madeleine. I became involved with the proceedings shortly afterwards. On 2 April 2008 Madeleine became a Ward of this Court, and since that date has remained a Ward. At all times jurisdiction was assumed by the Court because, there being no evidence to the contrary, it is presumed Madeleine is alive. She is a British Citizen, and like her parents habitually resident here. The current application was made on 2 April 2008 by the parents seeking disclosure of information and documents from the Chief Constable of Leicestershire to assist them and their own investigations in their search for Madeleine. Such are the complexities of the issues involved other interested parties were invited and joined to the application, and directions given for the hearing today. The parties have reached an accommodation whereby the Chief Constable will provide to Madeleine’s parents contact details of members of the public who had themselves contacted the parents or their solicitors, and which on receipt were immediately passed to the Chief Constable, together with a brief resume of the information given. The parents do not wish to pursue other aspects of the application, and save for the draft consent order being approved by this Court wish to withdraw their application and seek leave to do so. I have no criticism of the parents in making this application. They have behaved responsibly and reasonably throughout. I have considered the documents provided to this Court by the various parties, and have concluded that the agreement reached by the parties is entirely appropriate, and that the parents should be permitted to withdraw the balance of their application. I will make the Order by Consent as sought. In particular paragraph 1 of the Order made on the 22 May 2007 shall be varied with the words: “The terms of this paragraph shall not apply to the Chief Constable of Leicestershire or any other United Kingdom law enforcement agency. And for the avoidance of doubt all the evidence submitted to the Court and the Case Summaries and Skeleton Arguments remain confidential to the Court save that the Chief Constable may use his discretion to disclose his evidence, case summary and skeleton arguments filed in this Court and the Orders of 22 May 2007, 2 April 2008 and this Order. Any other documents and their contents are not to be disclosed to any person or published save in accordance with Orders already made by the Court or further Order of the Court”. It may be noted that neither of the Parents is present today. I let it be known last week that providing their legal team was fully instructed neither parent need be present, and I would not criticise or bear any ill-feeling towards them if they chose to stay away. It was my decision as they have suffered enough, and I wished to ease their burden. I know the police authorities and other official law enforcement agencies in this country, in Portugal and elsewhere have striven and will continue to strive to trace Madeleine. I urge anyone who has any information however small or tenuous to come forward now so that further enquiries can be made. There is, of course, as least one person who knows what has happened to Madeleine, and where she may be found. I ponder about that person: whether that person has a heart and can understand what it must be like for Madeleine to have been torn and secreted from her parents and siblings whom she loves and felt secure with, and whom no doubt misses and grieves for. Whether that person has a conscience or any feeling of guilt, remorse or even cares about the hurt which has been caused to an innocent little girl: whether that person has a faith and belief, and what explanation or justification that person will give to God. I entreat that person whoever and wherever you may be to show mercy and compassion, and come forward now to tell us where Madeleine is to be found. I hope and pray that Madeleine will be found very soon alive and well. I confirm the Wardship and Madeleine will remain a Ward of Court until further Order of the Court. The case will be reserved to myself subject to my availability.


http://www.docstoc.com/docs/1024037/Jud ... ine-McCann

Telegraph (snippet):

The McCanns hope their application to Mrs Justice Hogg will result in Leicestershire Police opening their files on scores of reported sightings of Madeleine, most of which have been passed on to them by police in Portugal, where the four-year-old disappeared in May last year.
Until now police in Leicestershire, the McCanns' home county, have refused the couple's requests for information about sightings, saying they are bound by the terms of an agreement with Portuguese police.
But Mr and Mrs McCann, who retain the services of a Spanish-based detective agency, are anxious to make sure that every possible lead has been checked out, which they believe the Portuguese police, whose investigation is gradually being wound down, may not be able to do.
The Telegraph can also disclose that Madeleine was made a ward of court last summer at the request of the McCanns, to empower judges to act in her best interests in any legal dispute such as the case which is about to be heard.
Clarence Mitchell, the McCanns’ spokesman, said: “I can state that on the instigation of Gerry and Kate McCann Madeleine is a ward of the High Court of England and Wales.
“An application has been made on Madeleine’s behalf by her parents for disclosure of certain documents. The hearing is currently scheduled for July 7 in the High Court in London.
“It has been the stated intention of Gerry and Kate McCann to leave no stone unturned in doing everything necessary to search for their daughter, as would any parent.
“This application is just part of their search for Madeleine.”
Madeleine’s status as a ward of court has never been disclosed by her parents, who quietly made a wardship application in the High Court just weeks after she went missing.
The couple’s legal team had advised them to ask for Madeleine to be made a ward of court because wardship status gives the courts certain statutory powers to act on her behalf in legal disputes such as the one which has arisen with Leicestershire police.
They still believe their daughter is alive and hope the police files may contain information which could yet lead to a breakthrough.
The case is listed to be heard in open court on July 7 in the Family Division of the High Court in London, and is expected to be contested by Leicestershire Police, according to legal sources.
Clarence Mitchell, the McCanns' spokesman, said: "Kate and Gerry have always said that they will do whatever is necessary to find Madeleine and that they will leave no stone unturned in their search for their daughter.
"They will take whatever legal steps are necessary if there is information out there that can assist their private investigation into finding Madeleine. Beyond that I cannot make any comment."
Mr Mitchell said the hearing would not involve any attempt by the McCanns to clear their names by proving they were not involved in their daughter's disappearance from a holiday apartment in Praia da Luz. They remain official suspects, or arguidos, in Portugal.
In recent months the couple have become increasingly frustrated at the slow progress of the Portuguese investigation, and they suspect that many possible sightings of Madeleine have not been followed up at all.
If they are given access to the police files on reported sightings, each one will be looked into by private investigators retained by the couple.

http://www.telegraph.co.uk/news/newstopi....for mation.html

Ministry of Justice

Criminal Procedure Rules


I.5WARDS OF COURT

(I.5.1) Where a child has been interviewed by the police in connection with contemplated criminal proceedings and the child subsequently becomes a ward of court, no leave of the wardship court is required for the child to be called as a witness in those proceedings. Where, however, the police desire to interview a child who is already a ward of court, application must, other than in the exceptional cases referred to in paragraph I.5.3, be made to the wardship court, on summons and on notice to all parties, for leave for the police to do so. Where, however, a party may become the subject of a criminal investigation and it is considered necessary for the ward to be interviewed without that party knowing that the police are making inquiries, the application for leave may be made ex parte to a judge without notice to that party. Notice, should, where practicable, be given to the reporting officer.

(I.5.2) Where leave is given the order should, unless some special reason requires the contrary, give leave for any number of interviews which may be required by the prosecution or the police. If it is desired to conduct any interview beyond what has been permitted by the order, a further application should be made.

(I.5.3) The exceptional cases are those where the police need to deal with complaints or alleged offences concerning wards and it is appropriate, if not essential, for action to be taken straight away without the prior leave of the wardship court. Typical examples may be: (a) serious offences against the ward, such as rape, where medical examination and the collection of scientific evidence ought to be carried out promptly; (b) where the ward is suspected by the police of having committed a criminal act and the police wish to interview him about it; (c) where the police wish to interview the ward as a potential witness. The list is not exhaustive; there will inevitably be other instances where immediate action is appropriate. In such cases the police should notify the parent or foster parent with whom the ward is living or other “appropriate adult” within the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, so that that adult has the opportunity of being present when the police interview the child. Additionally, if practicable, the reporting officer (if one has been appointed) should be notified and invited to attend the police interview or to nominate a third party to attend on his behalf. A record of the interview or a copy of any statement made by the ward should be supplied to the reporting officer. Where the ward has been interviewed without the reporting officer's knowledge, he should be informed at the earliest opportunity. So too, if it be the case that the police wish to conduct further interviews. The wardship court should be appraised of the situation at the earliest possible opportunity thereafter by the reporting officer, the parent, foster parent (through the local authority) or other responsible adult.

(I.5.4)
No evidence or documents in the wardship proceedings or information about the proceedings should be disclosed in the criminal proceedings without leave of the wardship court.


http://www.justice.gov.uk/criminal/proc ... /part1.htm

Reporting restrictions regarding Wards of Court:


WARDS OF COURT - ACCESS
Hearings are almost always held in private


WARDS OF COURT - REPORTING RESTRICTIONS

- You cannot report anything that relates to the proceedings (ie reports, letters, documents, evidence, statements) once the ward of court application process has begun (this covers the period leading up to the hearing, as well as the hearing itself)
- You cannot name children unless the Judge gives permission. This is the REVERSE of how the law used to operate, where you COULD name them unless an injunction was passed to prevent identification
- You can report (unless an injunctions says you cannot):
o The name of the court
o The name of the Judge
o The decision of the court ¡V to pass the Ward of Court order or not
o A story about a child who is a ward of court that does not name the child or refer to the proceedings (unless there is an injunction)
o Reactions (from family, authorities etc) to the decision, provided there is no injunction, the story does not name the child of lead to his identity, or refer to the proceedings in any way
o A story about a child who is a ward of court, including his name, provided you don¡¦t say he is a ward of court, or link him to proceedings (unless there is an injunction)
The same restrictions apply to children in other civil cases. But the media can argue in favour of identification on a case by case basis.

http://www.mediawise.org.uk/files/uploa ... elines.doc

http://www.independentproducerhandbook.c....oceedi ngs.html

Legislation

Child Abduction and Custody Act 1985
http://www.statutelaw.gov.uk/legResults ... Id=1559004


The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The "Child Abduction Section" provides information about the operation of the Convention and the work of the Hague Conference in monitoring its implementation and promoting international co-operation in the area of child abduction.

Full text of the Hague Convention:
http://www.hcch.net/index_en.php?act=co ... ext&cid=24


Interpreting the Hague Convention on International Child Abduction: Why American Courts Need to Reconcile the Rights of Non-Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention
Article from: The Review of Litigation Article date: April 1, 2006 Author: Wills, Melissa S | University of Texas, Austin, School of Law Publications, Inc. Spring 2006. Provided by ProQuest LLC. http://www.highbeam.com/doc/1P3-1043601481.html


http://www.reunite.org/edit/files/broch ... %20FCO.pdf


Definition:
Ward of Court
The title given to a minor who is the subject of a wardship order. The order ensures that custody of the minor is held by the Court with day to day care of the minor being carried out by an individual(s) or local authority. As long as the minor remains a ward of Court, all decisions regarding the minors upbringing must be approved by the Court, e.g. transfer to a different school, medical treatment etc

http://www.hmcourts-service.gov.uk/info ... egal.htm#W


LORD CHANCELLOR'S DEPARTMENT CHILD ABDUCTION UNIT
THE OPERATION OF THE WARDSHIP JURISDICTION IN ENGLAND AND WALES IN THE CONTEXT OF THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION INTRODUCTION

At the Second Special Commission Meeting in the Hague in January, 1993 to review the operation of the Hague Convention on International Child Abduction, it was evident that the operation of the wardship jurisdiction in England and Wales (it does not exist in Scotland) puzzled and concerned delegates from other contracting states. It was agreed that the English representatives would prepare, for the benefit of other Central Authorities, a short paper explaining the position.
http://www.hiltonhouse.com/articles/Wardship.uk


Ward of Court status is commonly requested in order to prevent (family) abduction:

http://www.childrenslegalcentre.com/Leg ... uction.htm


International Movement of Children By Nigel V. Lowe, Mark Everall, Michael Nicholls
http://books.google.co.uk/books?id=9uEG ... 77&dq=ward


Location orders
The Child Abduction and Custody Act 1985 section 5 and the Inherent jurisdiction may be invoked to trace an abducted child. See FPR 1991 rule 6.13. A raft of location orders are available to assist in finding the child.
As interim measures the High Court will make orders dealing with the following:
- requiring mobile and other phone companies to disclose the incoming and outgoing numbers with whom there has been contact between particular dates
- Solicitors are obliged to disclose the whereabouts of a child who is subject to of a seek and find order or a child who is a ward of court or otherwise if so directed by the court regardless of the rules of confidentiality which normally apply.
- - Publicity may be ordered
- Family Law Act Section 33 can be invoked to require disclosure where a Part 1 order usually a Children Act 1989 order under section 8 is sought.
- The Court may dispense with service on any party in order to avoid tipping off the abductor
- If there has been a breach of court order sequestration of assets may be ordered to produce a fighting fund
- An order requiring banks to disclose statements may show from where someone has drawn or spent money or show where the abductor worked between particular dates
- In respect of government departments see Practice Direction 20.7.95 For example, the Department of Work and Pensions may be ordered to disclose whether an application for social security benefits has been made
- Local Authority Housing department may have the address
- The Health Authority can be compelled to disclose the name of the GP of the abductor
- County Education department to disclose whether the child's name appears on a school register: (they have computerised records). Remember mothers might change a child's surname for school but not the first name!
- A common order is for a non party do disclose to the Plaintiff's solicitor their knowledge of the whereabouts of the child. If the party served denies knowledge a subsequent order may be made requiring the non party to attend at the High court to be cross examined under threat of contempt for breach.
- Information may be required from airlines but you need to be specific or they cannot help
- An order to restrain tipping off is often appended to an order intended to locate the child
http://www.familylawweek.co.uk/site.aspx?i=ed2255



Examples of WOC status cases:

http://www.guardian.co.uk/uk/2002/may/09/aids.world

http://news.bbc.co.uk/2/hi/uk_news/nort ... 300822.stm

http://www.independent.co.uk/news/uk/th ... 06985.html


Note:
At the time of compiling this information (2009) it was not possible to find any cases of children who are the victims of stranger abduction having been made a Ward of Court nor any cases where the WOC status has been used to obtain information relating to a non-parental abduction missing children’s case. (With thanks to Isar for helping to search for related information).