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England and Wales High Court (Family Division) Decisions
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Cite as:  EWHC 2198 (Fam) ()
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THE HONOURABLE MR JUSTICE WALL
This judgment is being handed down in private on 4 November 2002. It consists of 62 pages. The judge hereby gives leave for it to be reported.
The judgment may be reported on the strict understanding that in any report no person (other than counsel and Professor David) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
SITTING AT THE EMPLOYMENT APPEAL TRIBUNAL
Audit House, 58 Victoria Embankment,
London, EC4Y 0DS
Date 4 November 2002
B e f o r e :
| A Chief Constable
|- and -
|A County Council
AB (A child) (by his Children's Guardian SM)
DH and RW
Crown Copyright ©
|The Role of the Police||13-14|
|The Meeting of the Experts||15-18|
|The Role of the Parents in the Proceedings and the Instruction of Professor David||19-29|
|The Case for the Chief Constable||31|
|The Case for the Mother||32-34|
|The Arguments advanced by Professor David||35-40|
|The Case for the Local Authority||41|
|The Chief Constable's Reply||42|
|Analysis: The Role of a Judge at First Instance||43-47|
|The existence of the discretion to order disclosure of confidential material: the impossibility of total confidentiality||48-52|
|Section 98 of the Children Act 1989||53-61|
|In Re C (A Minor) (Care Proceedings: Disclosure)  Fam. 76||62-64|
|The argument that there is a trend in favour of disclosure to the police||65-67|
|The arguments for the mother not encompassed by Professor David||68|
|The arguments based on Re M (Care Proceedings: Disclosure: Human Rights)  2 FLR 1316 (Re M)||69-76|
|The arguments advanced by and on behalf of Professor David:|
|(1) Disclosure in the instant case will be likely to hamper the work of paediatricians instructed to investigate future cases of suspected abuse||77-82|
|(2) Professor David's argument that the possibility of disclosure to the police inhibits the proper diagnosis of injuries to children||83-85|
|(3) Professor David's examples||86-92|
|(4) The propriety of legal advice not to co-operate: legal professional privilege||93-101|
|(5) The undertakings sought from Professor David by the mother's solicitor||102-108|
|(6) The argument that experts will be deterred from accepting instructions to advise in children's cases||109-112|
|(1) The application of In Re C guidelines to the instant case||113-115|
|(2) AB 's interests||116-121|
|What can the Family Division do to encourage frankness in children's cases?||122-126|
Mr Justice Wall:
(a) the loss of his brothers;
(b) the inability to live with his parents;
(c) not having been afforded a true explanation about the deaths of his brothers;
(d) the risk that he would learn about the deaths of his brothers in circumstances likely to cause him distress.
THE ROLE OF THE POLICE
THE MEETING OF THE EXPERTS
THE ROLE OF THE PARENTS IN THE PROCEEDINGS AND THE INSTRUCTION OF PROFESSOR DAVID
1. That I will incorporate by reference into my report to the Court all notes and other documents prepared during or as a result of interviewing (the mother) and append them to my report to the Judge (sealed if I so wish) so that I retain no original or copy documents. I acknowledge that I will be at liberty to refer to such documents at any time during the hearing of the pending care proceedings.
2. That I will not reveal any answer made to me by (the mother) during my interview with her to any non-party to the pending care proceedings without the leave of the Judge hearing the Care Proceedings.
3. That I will not re-put to (the mother) any question to which objection has been taken upon her behalf by her solicitors during the interview without the said solicitor's permission and
4. That I will limit the conclusions in my report to the issues before the Care Court and (if it is appropriate for me to refer to the standard of proof at all) that I will limit myself to the standard apposite in Care Proceedings.
"SPECIAL CONFIDENTIALITY NOTICE
As with all documents, reports and other materials prepared in connection with Care Proceedings for AB, d.o.b. 21.6.95, this report and its appendices are strictly confidential, and cannot be disclosed without the leave of the Court.
However this report and its appendices are, in addition to this restriction, subject to a legal agreement without which the mother of the children, would have not agreed to being interviewed by me. Part of that agreement, which was made with (the solicitors) who act for (the mother) in the Care Proceedings, was that I gave a binding undertaking that I would not, under any circumstances, disclose either the contents of my report, its appendices, or any other notes or materials that I have or will make or obtain in connection with the case. This agreement was made quite specifically to ensure that none of these materials could ever be seen or accessed by the police. I must make it plain, therefore, that I can not and will not ever agree to the disclosure of this report, or its appendices, or any other materials connected with the case."
THE CASE FOR THE CHIEF CONSTABLE
(1) This case concerned two dead children. If their mother was responsible for their deaths, very serious crimes may have been committed. Accordingly, when the court came to balance the various-considerations identified by the Court of Appeal in the leading case of In Re C (A Minor) (Care Proceedings: Disclosure)  Fam. 76 at 85D to 86B, (In Re C) the scales came down heavily in favour of the public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children.
(2) AB's welfare was not the paramount consideration in any application for disclosure, although it was to be noted that disclosure was not resisted by his guardian.
(3) No witness in family proceedings had a guarantee of confidentiality, and the trend of the authorities was in favour of disclosure.
(4) The two other most relevant decisions of the Court of Appeal were Re W (Disclosure to Police)  2 FLR 135 and Re V; Re L (Sexual Abuse) Disclosure  1 FLR 267. In the former the court emphasised the importance both of interdisciplinary working in the area of child protection and the application of the guidelines laid down by the Court of Appeal in Re C. In the latter, Butler-Sloss LJ, as she then was, re-emphasised the importance of the Re C guidelines and added (at  1 FLR 270): -
"From the guidelines in Re C and the earlier decisions it is clear that the court in family proceedings is likely to disclose relevant information to the police or to a defendant to criminal proceedings unless there are powerful reasons to the contrary."
(5) The only reported case in which disclosure had been refused (apart from Re V; Re L where the disclosure sought did not arise from care proceedings) was In Re M (Care Proceedings: Disclosure) (Human Rights)  2 FLR 1316 (hereinafter referred to as Re M), a decision of Miss Elizabeth Lawson QC sitting as a Deputy High Court Judge. That case could readily be distinguished on its facts.
THE CASE FOR THE MOTHER
(1) the discretionary exercise identified in In Re C did not give any particular factor a predetermined importance. Equally, the list of factors identified was not exhaustive. Each case, accordingly, fell to be decided on its particular facts and there was no presumption in favour of disclosure.
(2) The police already had in their possession a substantial amount of information, including the statements and reports of their own expert witnesses. There was, accordingly, no real hardship to the prosecuting authorities if they were compelled to revisit their own experts for their own overview.
(3) Because of the special circumstances in which the report of Professor David was obtained, the court should give ultimate importance to the factors pointing against disclosure, namely the importance of confidentiality and the encouragement of frankness. Equal weight should be given to considerations of fairness to the mother who had "submitted herself to interview on the terms identified by Professor David".
(4) In his overview, Professor David "openly went outside (his) own expertise and his report, for a large part, was an analysis of the opinions of other disciplines and an exposition of Professor David's personal view of the inferences to be drawn from the circumstantial lay evidence of hospital personnel, which was adverse to the mother". In this latter respect, Professor David was in effect usurping the jury function of the court itself. Whilst such an exercise was proper in non-adversarial care proceedings, it was highly questionable whether the report's contents would be admissible in any criminal proceedings.
(5) As a general proposition, disclosure in the instant case would jeopardise future co-operation of parents with investigating paediatricians within care proceedings, without which the assistance the expert can render the court will be seriously undermined to the patent detriment of the welfare interests of subject children;
(6) The court should not lightly countenance the breaking/ignoring of Professor David's undertaking to the mother of confidentiality, which led to her change of stance about being interviewed;
(7) Such a course was an interference with the mother's right to respect for her private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, and to be justifiable must be shown to be in accordance with the law, "necessary in a democratic society", and proportionate. In this context reference was made to Z v Finland, (1997) 25 EHRR 371; Funke v France (1993) 16 EHRR 297; Saunders v. UK(1997) 23 EHRR 313.
(8) The court should follow the approach of Miss Elizabeth Lawson QC in Re M in considering section 98(2) of the Children Act 1989 and ask the question whether or not "the material used could fairly be used against the parents in any criminal trial" as a factor in deciding whether or not to order disclosure.
(9) Similar considerations applied to my judgment on the causation issue, particularly given its reliance on the report of Professor David.
THE ARGUMENTS ADVANCED BY PROFESSOR DAVID
(1) It risks harm to a child in whom abuse is suspected, by increasing the risk of misdiagnosis. This comprises both natural disease being diagnosed as abuse and abuse being misdiagnosed as natural disease. Professor David describes both risks as abhorrent;
(2) In the case of a hospitalised child with suspected abuse, it risks parents or other carers accepting advice to decline to co-operate with the treating paediatricians, which could imperil the child;
(3) Where a parent or carer accepts legal advice to decline to be interviewed, it risks expert paediatricians declining to agree to accept instructions to prepare a report, on the grounds that the expert's hands would be tied, preventing him or her from making the necessary enquiry. This in turn will hamper the work of the Family Court. The risk ultimately is that of harm to the child or children who are the subject of care proceedings. Incorrect or incomplete information could lead to harm as a result of an inappropriate order.
(1) Where a parent is interviewed by a paediatric expert who has been instructed to carry out an investigation for the purposes of Part IV proceedings, any statement made by that parent during the course of paediatric interview is a statement within Part IV proceedings and is covered by section 98(2) of the Children Act 1989.
(2) Since Professor David's report was an overview, and contained factual statement from the parents, it had to be read as a whole and was in a different category to medical reports which were confined to a strict analysis of medical or other material. As such, it had to be treated as a section 98(2) document.
(3) Reliance was placed on Re M and in particular on the statement of Miss Elizabeth Lawson QC at  2 FLR 1316 at 1324G:
"It may well be that the perspective of a deputy judge, who is also a practitioner specialising in this area of work, is different from that of the permanent judiciary especially in the Court of Appeal, but there is no doubt in my mind that the impact of the reported authorities and the trend whereby disclosure is almost routinely ordered to the police, has greatly discouraged the frankness which is so necessary to the resolution of children's cases and which Parliament sought to protect."
(4) Reliance was also placed on Miss Lawson's finding at  2 FLR 1325 that in the absence of frankness on the mother's part in that case, the court might well have been driven to conclude on the other available evidence that the perpetrator was the father.
(5) Professor David's identified concerns did not appear to have been expressly considered in previous cases, although they related to the factors identified by Swinton Thomas LJ in In Re C.
(6) The immeasurable value of a paediatric overview in terms of court time saved and in defining issues in difficult child cases was clear – see the judgment of Bracewell J in Re A (Non-Accidental Injury: Medical Evidence)  2 FLR 657.
(7) If, as a result of the development of case law relating to disclosure of Children Act material to the police, the ability of expert witnesses to gain essential information from parents was being impeded, that consequence, as a matter of public policy, was to be deprecated. Professor David's concerns as to the issues of principle were, accordingly, amongst the list of factors to be weighed in the balance when determining the application.
(8) The effect of the current case law relating to disclosure as identified by Professor David is of such importance that it justifies this court reviewing the approach to be taken to applications for disclosure. The movement in favour of disclosure has gone too far and risks seriously compromising the ability of experts and the family courts to investigate serious allegations of abuse effectively.
(9) Accordingly, in order to meet the need (a) to encourage frankness in children's cases; (b) to protect the welfare of children generally; and (c) to ensure the proper functioning of the family justice system, the current preference in favour of granting disclosure to the prosecuting authorities should be reversed.
THE CASE FOR THE LOCAL AUTHORITY
(1) there was an abundance of authority binding on a judge at first instance which made it plain that neither the court nor Professor David could give any guarantees of confidentiality.
(2) As to fairness, the mother had said very little to Professor David which could be construed as incriminating or even which might be put to the mother in interview by the police. She had plainly not been frank with Professor David, since his and the court's conclusions were wholly inconsistent with her case.
(3) On the other hand, there was a considerable public interest in there being a fully informed, skilful assessment of the circumstances surrounding the deaths of A and T.
(4) Interdisciplinarity and the principles underpinning the guidelines contained in Working Together suggested that documents and information available to this court ought to be made available to the police. It would not be good practice to tell the police they could instruct another expert to provide an overview for them. Reliance was placed on a dictum of Stuart-White J in Oxfordshire County Council v I and F  1 FLR 235 at 245F
"I reject the submission made on behalf of Mr. and Mrs. L that the police who are already aware of some of the medical evidence, could fill the gaps by instructing other experts. The complex nature of the medical evidence in this case and the extent of proper co-operation and collaboration between the experts regardless of the identity of the party instructing them would, in my judgment, make the instruction of suitable substitutes well nigh impossible."
(5) As to the criminal process, a barrier should not be erected between this court and the Crown Court. If the mother is re-interviewed, she will have the protection of legal advice and it would be a matter for her whether or not she gives a "no comment" interview. Prosecution was a matter for the Crown Prosecution Service, and in any criminal trial the mother would have the protection not only of section 98(2) of the Children Act 1989, but also of section 34 of the Criminal Justice and Public Order Act 1985 and section 78 of PACE.
(6) In the circumstances of this case, disclosure would not be unfair to the mother, and would not be contrary to the interests of AB. The public interest in the investigation and prosecution of serious offences against children predominated.
THE CHIEF CONSTABLE'S REPLY
(1) Professor David's overview was plainly primary material of critical importance to the court's conclusions in the causation hearing, and that it would be a total waste of resources for the police to be required to replicate it through their own further efforts.
(2) Similar considerations applied to the minutes of the experts' meeting.
(3) As to confidentiality, Professor David had been jointly instructed, and it was the mother who sought to impose conditions rather than the other way around. It was common ground that total confidentiality could not be assured: the advice given to the mother recognised this fact, and was the best the mother's advisers could achieve. Nothing in that process argued against disclosure.
(4) As to unfairness, similar considerations applied. The interview was not adversarial or challenging. She had not been frank during it. There had been no compulsion, and no breach of the privilege against selfincrimination. If the mother was prosecuted, she would have the protection built in to section 98(2) and the criminal process.
THE ROLE OF A JUDGE AT FIRST INSTANCE
THE EXISTENCE OF THE DISCRETION TO ORDER DISCLOSURE OF CONFIDENTIAL MATERIAL: THE IMPOSSIBILITY OF TOTAL CONFIDENTIALITY
SECTION 98 OF THE CHILDREN ACT 1989
(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from –
(a) giving evidence on any matter; or
(b) answering any question put to him in the course of his giving evidence,on the ground that doing so might incriminate him or his spouse of an offence.
(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury.
"(Its provisions are) modelled on similar provisions in section 23(2) of the Family Law Act 1976 and section 48(2) of the 1989 Act itself. They reflect the view that it is more important to encourage witnesses in child protection proceedings to be frank than it is either to preserve the citizen's privilege against self-incrimination or to secure admissible evidence for use in a prosecution."
"Ward J considered that the scope of s 98 extended to protecting admissions made in advance of care proceedings to a social worker, and was supported in that wide interpretation of the section by Hale J. Booth J in Re K and ors (minors) (disclosure of privileged material)  3 All ER 230 at 235,  1 WLR 912 at 916, albeit in a somewhat different context, took a narrower view, and said that the section provided protection to a witness who was required to give evidence in relation to a child when such evidence could incriminate him or his spouse.
Section 98(2) refers to 'A statement or admission made in such proceedings', which clearly refers back to s 98(1) which covers 'any proceedings in which a court is hearing an application ...' I would doubt that subs (2) could be extended as far as Ward J and Hale J have suggested or that it would cover the situations postulated in Oxfordshire CC v P or Cleveland CC v F. That preliminary view is not inconsistent with Re F (a minor) (publication of information)  1 All ER 114,  Fam 58, which dealt with documents in wardship proceedings which would today be covered by r 4.23 and not by s 98. My preliminary view is not intended to and cannot bind any criminal court in its duty to interpret s 98."
IN RE C (A MINOR) (CARE PROCEEDINGS: DISCLOSURE)  FAM. 76 (IN RE C)
"In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case:
(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
(2) The welfare and interests of other children generally.
(3) The maintenance of confidentiality in children cases.
(4) The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which s 98(2) applies. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.
(5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
(6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
(7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
(8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
(9) In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
(10) Any other material disclosure which has already taken place."
THE ARGUMENT THAT THERE IS A TREND IN FAVOUR OF DISCLOSURE TO THE POLICE
THE ARGUMENTS FOR THE MOTHER NOT ENCOMPASSED BY PROFESSOR DAVID'S STATEMENT
(1) The police already have a great deal of information and there would be no real hardship on the prosecuting authority in revisiting their own experts.
This would be a complete waste of police resources, and quite contrary to the spirit of interdisciplinary co-operation. I respectfully agree with the observations of Stuart-White J in Oxfordshire County Council v I and F  1 FLR 235 at 245F which I have set out at paragraph 41(4) above.
(2) Considerations of fairness
I see no tenable argument against disclosure on this ground. The mother has been fairly treated throughout the care proceedings. She made no self-incriminating statements. The court did not insist that she file a written statement or give oral evidence. She was under no compulsion to submit to interview with Professor David, not least because the court had no power to compel her to do so, let alone compel her to answer any questions put to her by him which might lead her to incriminate herself.
On my findings, the mother has not been frank. Furthermore, the terms on which she agreed to be interviewed by Professor David were her lawyers terms, not Professor David's. Her solicitor was present throughout the interview.
In short, there is nothing in the process which, to my mind, would make it remotely unfair to the mother for the material gathered by the court to be disclosed to the police.
(3) Arguments under the Human Rights Act
In Re C was decided before the enactment of the Human Rights Act 1998, which is, therefore, a consideration which can be brought into the equation. However, none of these cases cited by Mr. King and Miss Wall in paragraph 3 3(7) seemed to me to be in point, and assuming the mother's Article 8 rights to be engaged, the provisions of Article 8(2) plainly enable disclosure to be seen in this case as a proportionate response. No suggestion was made that the mother had not had a fair hearing under Article 6 of the Convention, and the absence of any form of compulsion means that Article 6 does not feature in the In Re C exercise. There is no suggestion that she would not have a fair trial if prosecuted.
(4) Professor David's function
Mr. King and Miss Wall criticise Professor David for stepping outside the area of his expertise and usurping the fact finding function of the court. I cannot agree that he did so. He was conducting an overview. I agree that it is not normally the function of the expert to identify the perpetrator, but on the particular facts of this case, Professor David was entitled to do so. Professor David was open to challenge by way of cross-examination on his report. Mr. King, for understandable reasons, did not exercise his right to cross-examine Professor David on this issue.
(5) The admissibility of Professor David's report in any criminal proceedings
My understanding of the Chief Constable's application is that he wishes to see Professor David's report in order to assist the police in their enquiries. That, patently, is a legitimate wish. Its admissibility in criminal proceedings would be a matter for the Crown Court.
THE ARGUMENT BASED ON RE M (CARE PROCEEDINGS: DISCLOSURE: HUMAN RIGHTS)  2 FLR 1316 (REM)
(1) the issue in the care proceedings was whether or not the child could be returned to the care of his parents. This was currently the subject of an intensive psychiatric, parenting and social work assessment. The window of opportunity during which the work could be done was narrow, and the parents would have to demonstrate very significant progress;
(2) If, instead of being able to concentrate on the assessment the parents were distracted by the stress of the re-opening of the criminal investigation, the chances of successfully re-uniting the child with his parents would be significantly reduced.
(3) If there was no prospect of rehabilitation, consideration (2) would be a factor of little weight.
(4) Both parents had health problems. The father suffered from sickle-cell anaemia which was affected by stress, and the mother was suffering post traumatic stress symptoms deriving from what the deputy judge described as "a terrifying" attack on her by a former boyfriend subsequent to which she had had to give evidence at his criminal trial twice (the first trial was aborted). The deputy judge was satisfied that facing a further criminal investigation into the child's injuries would almost certainly prevent her from engaging effectively in therapeutic work.
(5) The mother's frankness had been crucial to the resolution of the proceedings. That frankness had been in the interests both of the child and of justice.
(6) The fact that the mother had been compelled to give evidence was a factor which rendered it unfair to her to turn her frankness against her, and there was a danger of oppression in the manner in the use that would be made of it.
THE ARGUMENTS ADVANCED BY AND ON BEHALF OF PROFESSOR DAVID
(1) Disclosure in the instant case will be likely to hamper the work of paediatricians instructed to investigate future cases of suspected abuse
(2) Professor David's argument that the possibility of disclosure to the police inhibits the proper diagnosis of injuries to children.
(3) Professor David's examples
(1) A child who was suspected of suffering from laxative abuse, was in fact suffering from a treatable condition, a diagnosis which was rendered possible by taking a detailed and careful history. Had the parents had been advised by their lawyers not to be interviewed by the expert, the allegation of laxative poisoning may have been upheld.
(2) A male infant was found to have a subdural haematoma, and a few retinal haemorrhages. Several experts concluded that this was a case of abusive shaking. However, a detailed history from the father obtained for the purposesof a paediatric overview report revealed an accidental event resulting in whiplash injuries, and the child was returned to the parents.
(3) A child was brought twice to hospital in a collapsed state having stopped breathing. On each occasion the child was in the care of the father. Treating paediatricians thought the collapses probably due to natural causes, but a detailed history taken for the purposes of a paediatric overview revealed symptoms strongly pointing to deliberate suffocation.
(4) A very handicapped child who was exceptionally difficult to feed and who was found to have a number of fractures which were thought to be non-accidental. The doctors thought that the child would have suffered pain when the injuries occurred and afterwards. The child was removed from the parents. A detailed history taken for the purposes of a paediatric interview revealed that the child was so handicapped that she was unable to respond normally to pain and that the injuries were likely to have been caused by rough handling during attempts to feed the child. Supportive measures were introduced which enabled the child to return to her parents' care.
(5) A pre-term baby was found unexpectedly dead a few weeks after coming home from an extended stay in hospital. The child had a subdural haemorrhage and recent retinal haemorrhages. The father seemed the most likely culprit, since he had a history of violent criminal offences, and had assaulted the mother. However, a detailed history taken for the purposes of a paediatric overview revealed features which pointed to the mother as the perpetrator, and this was the finding made in the care proceedings.
(4) The propriety of legal advice not to co-operate: legal professional privilege
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
"For my part, I would wish to see case law go further and to make it plain that the legal representatives in possession of such material relevant to determination but contrary to the interests of their client, not only are unable to resist disclosure by reliance on legal professional privilege, but have a positive duty to disclose to the other parties and to the court."
In the Family Justice System, therefore, the position remains that the confidentiality of what parents say to their lawyers relating to the proceedings is absolute.
(5) The undertakings sought from Professor David by the mother's solicitor
(6) The argument that experts will be deterred from accepting instructions to advise in children's cases (paragraph 37(3) and 38)
The application of In Re C guidelines to the instant case (references in brackets are to the individual guidelines set out in paragraph 64 above)
AB's interests (Guideline (1))
The remaining guidelines
What can the Family Division do to encourage frankness in children's cases?
(1) Cases involving disclosure to the police of confidential material generated by care proceedings fall to be decided by carrying out the discretionary balancing exercise laid down by In Re C (A Minor) (Care Proceedings: Disclosure)  Fam. 76.
(2) There is no presumption in favour of disclosure to the police in Children Act cases. Each case falls to be judged on its merits accordingly to the guidelines laid down in Re C. Equally, Re C does not give any one factor a pre-determined importance, and the list of factors set out in Re C is not exhaustive.
(3) The provisions of section 98(2) of the Children Act apply to any statement or admission which a parent gives to an expert witness.
(4) Prior to being interviewed by an expert witness, parents should have the terms and the purpose of section 98(2) explained to them by their lawyers.
(5) It may be that the extent and effect of the protection given by Section 98(2) are currently being underestimated by family lawyers. Section 98 gives substantial protection to any parent who wishes to be frank, and who makes a self-incriminating statement either to an expert witness or in the witness box.
(6) A policy of non-disclosure to the police in all cases is impermissible, but even if were, it would be unlikely to have the effect of achieving frankness on the part of those accused of abusing children, and it is equally doubtful that such a policy would achieve the objective of facilitating the diagnosis of abuse.
(7) Advice to parents not to co-operate in the court's investigation into allegations of child abuse, whilst not professionally improper, represents poor practice and is likely to lead to an inference being drawn against the parent who is not co-operating. In any event, a parent is a compellable witness (section 98(1)) and can be ordered to file a statement. A failure to co-operate therefore serves no purpose, in particular because parents are protected against the consequences of self-incrimination by section 98(2).
(9) It is not acceptable practice for lawyers representing parents to seek to put pressure on expert witnesses to require them to conduct their investigation in a particular way.
(10) In particular it is unacceptable for lawyers acting for any party to put pressure on expert witnesses (1) not to retain their notes of any interviews with that party; (2) not to reveal any answers given to that party to any non-party without the judge's permission; and (3) to seek to restrict the ambit or nature of the questions which the expert witness wishes to ask. Any issue relating to the nature or extent of the expert's investigation should be referred to the court for resolution.
(11) Expert witnesses should not be deterred from advising the court in care proceedings by the risk that they may not have parental co-operation with their inquiries.
(12) Depending on the seriousness of the abuse, and the practicability of rehabilitation, the court is more likely to refuse an application for disclosure to the police in a case involving child abuse where there is a frank acknowledgement of responsibility by the abusing parent. This is often perceived as a vitally important first step towards rehabilitation between parent and child, particularly when coupled with a recognition of the harm caused and a genuine desire for help to avoid repetition.