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England and Wales High Court (Family Division) Decisions


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Cite as: [2002] 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.

Neutral Citation Number: [2002] EWHC 2198 (Fam)
Case No BB00C00758

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SITTING AT THE EMPLOYMENT APPEAL TRIBUNAL

Employment Appeal Tribunal
Audit House, 58 Victoria Embankment,
London, EC4Y 0DS
Date 4 November 2002

B e f o r e :

THE HONOURABLE MR JUSTICE WALL
____________________

Between:
A Chief Constable
Applicant
- and -

A County Council
AB (A child) (by his Children's Guardian SM)
DH and RW


Respondents

____________________

Hearing date 26 July 2002
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    INDEX

    Subject matter Paragraphs
    Introduction 1-3
    The Background 4-12
    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 arguments 30
    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) [1997] 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) [2001] 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
    Conclusions  
    (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
    The Coroner 127-132
    SUMMARY 133
    Footnote 134

    Mr Justice Wall:

    INTRODUCTION

  1. This case raises in an acute and unusual form the well recognised tension in care proceedings between, on the one hand, the desirability of encouraging frankness on the part of parents suspected of killing or injuring their children and, on the other, 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. The arguments before me have ranged very widely, and raise issues of considerable importance for the day to day operation of the family justice system. The result is a judgment of much greater length than I had anticipated.
  3. Before the court is an application by a Chief Constable for the disclosure to the police of all the medical evidence filed within care proceedings relating to AB (the child with whom I am concerned) together with the transcript of a judgment which I gave on 7 February 2002 at the conclusion of a causation hearing. The principal medical documents sought are (1) a report comprising a paediatric overview of the case undertaken on the joint instructions of the parties by a well known consultant paediatrician, Professor T. J. David; and (2) the minutes of a meeting of medical experts held during the course of the proceedings. The Chief Constable also seeks permission to obtain a transcript of Professor David's evidence given at the causation hearing.
  4. THE BACKGROUND

  5. AB, who was born on 21 June 1995. He is thus now 7. He is the oldest and only surviving child of his parents, who are not married to each other, and whom, throughout this judgment, I will call "the mother" and "the father". The mother is now 25, and the father 32.
  6. For present purposes, the facts can be shortly summarised. AB had two brothers, A, born on 22 January 1998 and T, born on 15 June 1999. A died on 3 December 1998, aged 10 months. At the date of A's death, the mother was, of course, pregnant with T. T died on 28 September 1999, aged 3 months.
  7. As far as A is concerned, the pathological evidence at the time was inconclusive, and the cause of death was described as "unascertained". T, however, was found post mortem to have retinal haemorrhages. The inquest on T currently stands adjourned.
  8. The case for the local authority before me was that neither death was from natural causes. In A's case, it sought findings that death was due to inflicted airways obstruction smothering and that the perpetrator was A's mother. In T's case, it sought findings that death was due to violent shaking, and that, once again, the mother was the perpetrator. At no time was it suggested that the father was the perpetrator of any of the injuries inflicted on either A or T, or that he had in any way failed to protect either child. AB has at no time suffered any injuries.
  9. At the time of the causation hearing, the parents were still living together. At its conclusion and applying the burden and standard of proof set out in the speech of Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 564, I made the findings of fact sought by the local authority. This led in due course to a concession by the parents that the threshold criteria under section 31 of the Children Act 1989 were satisfied in relation to AB on the basis that he was likely to suffer significant harm of an emotional nature due to:
  10. (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.

  11. Following the causation hearing, the parents separated. On 29 July 2002, I made a care order in relation to AB, who is now living with his father. He is currently having supervised and gradually reducing contact with his mother.
  12. As part of the care plan for AB's long term management, the local authority has engaged the services of an very experienced, skilled, and highly respected local child psychologist, one of whose principal functions is to advise the local authority about the explanations which AB should receive relating to the deaths of his brothers, and the role of his mother both in their deaths and in his future life. These factors are plainly relevant to the effect on AB of any disclosure to the police resulting in a future prosecution of his mother.
  13. Rehabilitation of AB with his mother is not contemplated. Following the causation hearing, a consultant psychiatrist, Dr. KB carried out an assessment of the mother. Dr. KB found that the mother, whilst an anxious person, was not suffering from any mental disorder or mental impairment or psychopathic disorder. In interview with Dr. KB, the mother maintained her denial that she had done anything to harm either A or T.
  14. Despite that complete denial of responsibility, Dr. KB suggested that the mother might nonetheless benefit from a residential assessment in more depth, and recommended a particular unit. However, in a statement made on 15 July 2002 (her only evidence in the proceedings) the mother made it clear that she was not prepared to participate in such an assessment. In these circumstances, the psychologist referred to in paragraph 10 expressed the view that unless his mother had been able (1) to acknowledge responsibility for the deaths of his two brothers; and (2) successfully to undergo some very intensive therapy, AB would run a grave risk of serious psychological disturbance if he were to live with his mother again.
  15. THE ROLE OF THE POLICE

  16. The police were notified of T's death by the hospital to which he had been admitted. A criminal investigation began in October 1999, during the course of which the mother was arrested and interviewed. However, she denied being in any way responsible for T's death, and in the absence of any clear cause of death being established at that stage, she was released without charge.
  17. The police, of course, became aware of the care proceedings in relation to AB. They were also aware that further medical evidence had been obtained and that I had conducted a causation hearing in relation to the deaths of both children. Accordingly, they sought disclosure of all relevant material to assist them, in particular, with their ongoing investigation into T's death.
  18. THE MEETING OF THE EXPERTS

  19. The critical issues addressed in the care proceedings were, of course, the causes of the deaths of both A and T. There was, inevitably, an abundance of medical evidence, and on 10 January 2002 there was a meeting of the expert witnesses in the case, chaired by counsel for AB.
  20. Apart from Professor David, the medical disciplines represented at the meeting comprised two ophthalmic pathologists, two paediatric pathologists, a forensic pathologist, and a paediatric neurologist. Available on the telephone was a paediatric ophthalmologist, but a second forensic pathologist did not attend and was not available on the telephone. Commensurate with the complexities of the case, there were some 77 questions for the meeting to discuss and to answer.
  21. The meeting lasted from 10.00 am to 7.17 pm, and a remarkable degree of consensus was reached. The doctors all subsequently signified their agreement with the record of the meeting, which carefully recorded the answers to all 77 questions. The single material point of dissent was from one of the paediatric pathologists who expressed the opinion that whilst retinal haemorrhages may be associated with a shaking injury, in themselves they provided no proof that such an injury occurred. He was, however, the only doctor at the meeting to express that view.
  22. As a result of the meeting, none of the experts in the case, apart from Professor David, was required to give evidence. The level of agreement reached at the meeting was, accordingly, highly significant, and of considerable assistance to me at the causation hearing.
  23. THE ROLE OF THE PARENTS IN THE PROCEEDINGS AND THE INSTRUCTION OF PROFESSOR DAVID

  24. Neither the mother nor the father was required to file any evidence for the causation hearing, and neither did so. At the hearing itself, none of the parties made an application to cross-examine the mother. Moreover, I did not insist, as I could have done, that she give oral evidence.
  25. As part of the evidence in the case, Professor David was jointly instructed to provide a "paediatric overview". He made it clear from the beginning that it was his invariable practice in these circumstances to interview the parents of the child or children concerned, and that in the course of his enquiries he would wish to interview the mother.
  26. Whilst Professor David understood from a meeting of all the parties' lawyers on 21 March 2001, which he attended, that the mother's lawyers might advise her against agreeing to be interviewed by him, it was not until December 2001, at a very late stage in the proceedings, when most of Professor David's work had been done, that the mother's solicitors wrote to the solicitors acting for AB telling them that, acting entirely on legal advice, the mother had concluded that in the circumstances it would not be appropriate for her to submit herself to interview with him. The letter pointed out that Professor David was not the "diagnosing clinician", and that he had all the relevant medical notes available to him. The mother's solicitors offered to "consider an appropriate written response" to any questions he might wish to ask.
  27. The letter was immediately forwarded to Professor David, and he replied at some length on the same day, stressing the fact that he regarded his interview with the parents as a critical part of his work, and inviting an urgent reconsideration of the mother's decision not to meet him.
  28. On 19 December 2001, Black J made an order on the mother's application giving her permission to "disclose to a specialist criminal barrister of her choosing the papers herein with a view to the preparation of a statement of the terms upon which the mother is prepared to be interviewed by Professor David ..."
  29. Professor David met the mother, with her solicitor, late in the afternoon of 21 December 2001. The latter presented him with a document, which he invited Professor David to sign before he interviewed the mother. I think it necessary to set out the relevant part of this document in full. It required Professor David to give the following undertakings: -
  30. 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.

  31. Professor David, in the statement which he made in the disclosure proceedings, says that it was made absolutely clear to him that the mother, acting on legal advice, would only agree to being interviewed by him on the basis of those undertakings.
  32. Professor David was clearly placed in a very difficult position. He calls it "unprecedented". His work on the case was very well advanced, with the final date for him to produce his report very close. He did not have recourse to professional advice. However, he formed the view, "rightly or wrongly" as he puts it, that it would be unprofessional for a medical practitioner in his position deliberately to destroy all records of an interview with the children's mother. He was concerned that this action could potentially lay him open to criticism by the General Medical Council, the general recommendation being that all medical records should always be carefully preserved. He was also concerned that the destruction of these records could potentially make it difficult for him to mount an adequate defence should there ever be any criticism or complaint about his interview of the mother.
  33. Accordingly, he refused to agree to the first of the four undertakings, and was unwilling to sign the document. However he gave a verbal undertaking (i) to agree without reservations to the three remaining pre-conditions; and (ii) to ensure that his report was prefaced with a very clear warning about confidentiality and disclosure. This warning, which made specific reference to the fact that he would never agree to his report being disclosed to the police, appeared on the front page of his report, and is reproduced verbatim below:
  34. "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."

  35. When I read Professor David's report for the causation hearing I was sufficiently concerned by the "Special Confidentiality Notice" to make an order, at the conclusion of the hearing on 7 February 2002 giving permission for Professor David (1) to disclose his report to the Medical Defence Union; and (2) to intervene in the proceedings for the limited purpose of responding to any application by the Chief Constable for disclosure of documents. Professor David, I am pleased to say, did intervene, was funded by the Medical Defence Union to do so, and was represented by Mr. Andrew McFarlane QC. Professor David also put forward a substantive document setting out his position, for which I am grateful.
  36. All I need say at this point about Professor David's paediatric overview report prepared for the causation hearing is that it is, in my judgment, a first class piece of work. It is very long, but its length is clearly warranted by the complexity and seriousness of its subject matter. Despite this, it is clearly written, well presented, exhaustive, balanced, meticulously researched and entirely fair. Its conclusions are well reasoned and unequivocal. Taken together will the other evidence in the case I found them compelling and the content of the report generally was highly influential in the findings of fact which I made.
  37. THE ARGUMENTS

  38. The Chief Constable's application for disclosure was supported by the local authority and, in broad terms, by AB's guardian. It was opposed by the mother and by Professor David. The father's position was, essentially, one of neutrality, although counsel on his behalf took the opportunity to comment on and to support Professor David's analysis of what they argued was the unsatisfactory current state of the law in relation to disclosure. Because of the importance of the issues they raise, I propose to set out the principal arguments in some detail.
  39. THE CASE FOR THE CHIEF CONSTABLE

  40. For the Chief Constable, Miss Margaret de Haas QC's opening argument was simple and straightforward. I can summarise it as follows: -
  41. (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) [1997] 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) [1998] 2 FLR 135 and Re V; Re L (Sexual Abuse) Disclosure [1999] 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 [1999] 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) [2001] 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

  42. For the mother, Mr. Timothy King QC and Miss Jacqueline Wall argued as follows: -
  43. (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.

  44. On the crucial issues of confidentiality and fairness, Mr. King and Miss Wall argued: -
  45. (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.

  46. Mr. King and Miss Wall made it clear that the mother's advisers were aware throughout that there was no way in which, as the law currently stood, the mother could achieve an absolute guarantee of confidentiality either from Professor David or the court. The terms put forward for the interview were, accordingly, the best that could be done to protect the mother from wider dissemination of any damaging admissions she might make in interview, and thus to encourage her to be frank.
  47. THE ARGUMENTS ADVANCED BY PROFESSOR DAVID

  48. In the statement which he provided for the disclosure hearing, Professor David stated that he was "obliged" to oppose the application because of the agreement he had made with the mother's solicitors. However, he also did so as a matter of principle. Much of his statement is taken up with a detailed explanation of why he takes the view that it is of critical professional importance for him to interview the parents of the child or children concerned, even in cases where he is providing an overview. He gives a number of anonymised examples, from his experience, in which the parental interview has been critical, both in confirming and in negating abuse. He also acknowledges, however, that a face to face interview is not necessary in every case, and accepts that, as it happens, little that was new emerged from his interview with the mother, other than some additional inconsistencies in her account.
  49. In the course of his statement, Professor David is highly critical of lawyers who advise their clients not to be interviewed by an expert paediatrician. He describes such advice as both "a bizarre corruption of the whole care proceedings process" after the court has authorised the joint instruction of the expert to investigate and report; and as "a direct obstruction of the whole investigative process, which interferes with the work of the court and prevents the paediatric expert from properly carrying out his instructions". Professor David likens it to being asked to treat a bad cough, whilst being told at the same time that he could not use a stethoscope.
  50. Professor David identifies two principles at stake in the instant case. The first, adopted by Mr. King and Miss Wall, is that if disclosure is granted in this case, this will be likely to hamper the work of paediatricians instructed to investigate future cases of suspected abuse. This, Professor David argues, could have three detrimental affects: -
  51. (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.

  52. Professor David's second point of principle was his concern that the welfare principle in children's cases was being displaced by the lawyer's assertion that it was more important to protect the parent from the possibility of criminal prosecution than it was to assist the court in care proceedings. Professor David cited several examples of cases of suspected child abuse of a serious nature in which he had been prevented from interviewing one or both parents as a result of their lawyers' advice, based on the fear that his report to the court might assist a possible criminal prosecution. He had also declined instructions in cases when it was plain that he was not going to be allowed to interview the parents.
  53. In short, Professor David's thesis was that the system of disclosure operated against the interests of children by placing a greater value on the prosecution and conviction of offenders than on the welfare of survivors of abuse and their siblings.
  54. In the skeleton argument prepared on Professor David's behalf by Mr. Andrew McFarlane QC, the following additional points were advanced: -
  55. (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 [2001] 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 [2001] 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) [2001] 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

  56. For the local authority, Mr. Stephen Dodds advanced the following arguments:
  57. (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 [1997] 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

  58. In reply, Miss de Haas argued: -
  59. (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.

    ANALYSIS

    THE ROLE OF A JUDGE AT FIRST INSTANCE

  60. Having taken time for reflection, I have come to the clear conclusion that the arguments of the Chief Constable and the local authority should prevail on the facts of this particular case, and that on an application of the principles laid down in In re C, this is a case in which the public interest in the prosecution of serious crime and the punishment of offenders prevails over the desirability of encouraging frankness on the part of parents suspected of killing or injuring their children.
  61. In these circumstances, it would be possible for me to give my reasons for taking that view in a few short paragraphs. However, as the tension I identified in paragraph 1 of this judgment is a matter of ongoing concern both to lawyers and expert witnesses, and as important and carefully considered arguments of policy have been put to me as reasons for refusing to order disclosure in this particular case, I must address them.
  62. I must also, however, begin my analysis by reminding myself of my limited function as a judge at first instance. I do so with particular reference to Mr. McFarlane's submissions numbered (8) and (9) set out at paragraph 40 of this judgment, which invite me to review the approach to be taken to applications for disclosure and to "reverse the current preference in favour of granting disclosure to the prosecuting authorities".
  63. Acutely conscious as I am of the importance and difficulty of the issues raised, I simply cannot do what Mr. McFarlane asks, and such submissions are, in my judgment, inappropriately addressed to a first instance judge. The simple fact of the matter is that In Re C, and the decisions of the Court of Appeal which follow it are binding on me. My task, as I see it, is to decide this case by carrying out the discretionary balancing exercise laid down by In Re C.
  64. That is not, of course, to say that I seek in any way to minimise Professor David's concerns, or the concerns expressed by Miss Elizabeth Lawson QC in Re M. It is simply a recognition that issues of policy are not for me to formulate. Those are matters for the Court of Appeal or for Parliament.
  65. THE EXISTENCE OF THE DISCRETION TO ORDER DISCLOSURE OF CONFIDENTIAL MATERIAL: THE IMPOSSIBILITY OF TOTAL CONFIDENTIALITY

  66. I accept, of course, that the likelihood, or even the possibility, of prosecution is a powerful disincentive to frankness in family proceedings. However, as the law currently stands, and for child protection and other reasons which are self-evident, the entire debate about the encouragement of parental frankness in public law children's cases has to start from the premise that absolute confidentiality within the proceedings for what a parent tells the court, an expert witness, the local authority or the children's guardian is impossible. Mr. King and Miss Wall rightly acknowledge this in their argument (see paragraph 34 above). This is, in my judgment, an obvious, but nonetheless fundamentally important point, and applies both to information given to an expert witness and to the court.
  67. I use the words "self-evident" in paragraph 48. Nobody would suggest that information emerging during an interview between a parent and an expert which raised serious child protection issues requiring immediate action should not be disclosed at once by the expert to the relevant child protection authorities. It is also not difficult to imagine other, perhaps less dramatic, instances in which it would be necessary for the confidentiality of the interview to be breached.
  68. The General Medical Council, in its advice to doctors entitled Confidentiality: Protecting and Providing Information states in terms that in the absence of consent, personal information about a patient may be disclosed "in the public interest where the benefits to an individual or to society of the disclosure outweigh the public and the patient's interests in keeping the information confidential". Amongst the examples given is one where failure to disclose may expose the patient or others to risk of death or serious harm. A further example is where disclosure may assist in the prevention, detection or prosecution of a serious crime, including the abuse of children. The guidance recognises, moreover, that disclosure in these circumstances may need to be made promptly.
  69. The existence of a judicial discretion to order disclosure of confidential material was challenged in In Re C both at first instance and in the Court of Appeal. The challenge failed in both jurisdictions. Since everyone agrees the discretion exists, the argument can only be about how and in what circumstances it should be exercised.
  70. It should also be noted that the need for the existence of the judicial discretion to disclose to third parties is not simply related to disclosure to the police. The discretion has been exercised in a large number of different ways; for example, to provide material necessary for a party to mount a defence to criminal charges (Re D (Minors) (Wardship: Disclosure) [1994] 1 FLR 346); to enable a party to take proceedings for negligence against a health authority (Re Manda [1993] Fam. 183); to show the papers to the special adjudicator in an immigration appeal (Re F (a minor) (disclosure: immigration) [1994] 2 FLR 958); to enable the General Medical Council to consider the conduct of a doctor (County Council v W [1997] 1 FLR 574; to make a claim to the Criminal Injuries Compensation Authority (Re X (Disclosure of Information) [2001] 2 FLR 440); and to provide information to a Health Authority (A Health Authority v X [2002] 1 FLR 104. These are only some of the examples in the books.
  71. SECTION 98 OF THE CHILDREN ACT 1989

  72. In my judgment, the protection given by section 98 of the Children Act 1989 is in danger of being under-estimated by family lawyers. The section is headed "Self-Incrimination", and reads as follows: -
  73. (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.

  74. The extent of the protection provided by section 98(2) has been the subject of judicial debate and is not entirely clear. It plainly covers admissions made in oral evidence, and evidence contained in a party's written statement filed in the proceedings, which are also protected by 1991 FPR r. 4.23. In Oxfordshire County Council v P [1995] Fam. 161 and Cleveland County Council and another v F [1995] 2 All ER 236, however, both Ward and Hale JJ (as they then were) respectively took the view that the phrase "a statement or admission made in such proceedings" was wide enough to cover statements made to the children's guardian in the proceedings (Oxfordshire CC v P) and to a social worker (Cleveland County Council and another v F). Hale J succinctly encapsulated the purpose of section 98 in the following words: -
  75. "(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."

  76. However, in the leading case of Re G (Social Worker: disclosure) [1996] 1 FLR 276, Butler-Sloss LJ (as she then was) commented on section 98(2) in the following way: -
  77. "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) [1994] 3 All ER 230 at 235, [1994] 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) [1977] 1 All ER 114, [1977] 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."

  78. Butler-Sloss LJ also held that insofar as Ward and Hale JJ had equated the role of the social worker with that of the guardian, they were wrong to do so. She pointed out that the guardian was appointed by the court and had no function outside the proceedings. Once the proceedings were completed, the guardian's function was at an end. By contrast, the social worker's duties were much wider and by no means confined to court proceedings.
  79. In the instant case, section 98(1) does not apply, as the mother did not give evidence, although she could have been compelled to do so. I agree, however, with Mr. McFarlane that section 98(2) is not limited to statements or admissions made in oral evidence, and that, accordingly, what the mother said to Professor David is covered by section 98(2) and is thus inadmissible against her in any criminal proceedings. I do not find it necessary to decide Mr. McFarlane's second point, (that the balance of Professor David's report has to be treated as a "section 98(2) document"). In my judgment that would be a matter for the Crown Court judge.
  80. In my judgment, the position of expert witnesses in proceedings under the Children Act is analogous for these purposes with that of the guardian. They are both appointed by the court: both give advice to the court, although the guardian, of course, has much wider duties and responsibilities. Neither has any function once the proceedings are concluded, unless the expert happens to be a treating clinician. Their reports are protected from disclosure by FPR rule 4.23. It follows, in my judgment that a statement made to an expert witness is a statement made in the proceedings and thus entitled to the protection of section 98(2).
  81. In my judgment, there are sound policy reasons for reaching this conclusion, even in the highly unusual circumstances envisaged in paragraphs 49 and 50. If parents are told not only that the interview with the expert witness cannot be entirely confidential, but also that anything they say to the expert may be admissible against them in criminal proceedings, they will have little motivation to be frank, and section 98(2) will be robbed of much of its efficacy.
  82. Section 98 of the Children Act 1989, in my view, therefore, 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. Although there is not yet, as I understand it, any jurisprudence about how evidence to which section 98 applies is treated in the Crown Court, I agree with Mr. Dodds when he argued that the likelihood is that any self-incriminating statement made in family proceedings would only be admissible in a criminal trial if the person who made it repeated it in a subsequent interview with the police. At any such interview, however, the parent who made the statement would be entitled to the protection of PACE and would be likely to be accompanied by a solicitor. Whilst it would, of course, be a matter for the Crown Court judge, I agree with Mr. Dodds that a subsequent police interview would be unlikely to be admissible, if what occurred in it was that the inadmissible statement was put to the maker, who either then made no comment; or, on advice, stated that he/she had been assured that the statement would not be admissible in criminal proceedings, and had been made on that basis.
  83. Finally on this point, my experience is that the concepts underlying section 98 are difficult for the lay witness to understand. Accordingly, there is a particular duty laid on lawyers in this context to explain section 98 clearly to their clients and to ensure that the explanation is fully understood.
  84. IN RE C (A MINOR) (CARE PROCEEDINGS: DISCLOSURE) [1997] FAM. 76 (IN RE C)

  85. Although there is a plethora of authority on the subject of disclosure to third parties of material generated in proceedings relating to children, I am satisfied that for the purposes of the instant case, the seminal decision is that of the Court of Appeal in In Re C, which is not only binding on me, but which clearly identifies the factors which the court needs to take into account when exercising its discretion whether or not to order disclosure.
  86. In In Re C, at first instance, I refused to order the disclosure to the police of a transcript of the evidence given by the father of the child with whom I was concerned, in which he had made an admission that he had been responsible for the death of that child's sibling. I did so on the basis that as I saw the case, the principle of encouraging parental frankness, which had resulted in the admission being made, predominated. That exercise of discretion was, however, reversed by the Court of Appeal.
  87. Although the instant case does not directly engage the main thrust of section 98 of the Children Act 1989 (the mother did not give evidence and has at no stage made any self-incriminating statement) many of the features of In Re C are present. Accordingly, although they are well known, the factors identified in the leading judgment of Swinton Thomas LJ at [1997] Fam 76, 85D to 86D need to be set out, and this case must be assessed by reference to them: -
  88. "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

  89. A common theme of the submissions made to me was not that the factors identified in In Re C were inappropriate or unimportant, but that the trend of the subsequent cases in favour of disclosure had distorted the essential discretionary exercise by creating what is, in effect, a presumption in favour of disclosure. Support for that proposition was said to be contained within the judgment of Butler-Sloss LJ (as she then was) in Re V; Re L (Sexual Abuse) Disclosure [1999] 1 FLR 267, 270, a passage relied upon by Miss de Haas and set out at paragraph 31(4) above.
  90. Whilst I agree with the initial submissions made by Mr. King and Miss Wall set out in paragraph 32(1) of this judgment, I do not take the view that in Re V; Re L Butler-Sloss LJ intended to create any presumption in favour of disclosure. All she seems to me to be saying, with respect, is that in the context of modern interdisciplinary child protection good practice, there have to be good reasons for any refusal of the exercise of the judicial discretion to permit disclosure. The factors set out in In Re C all have to be weighed, and will be given different weight in different cases. In Re V; Re L disclosure was, after all, refused.
  91. I approach the instant case, accordingly, on the basis that there is no presumption in favour of disclosure; that In Re C does not give any one factor a pre-determined importance; and that the list of factors in In Re C is not exhaustive.
  92. THE ARGUMENTS FOR THE MOTHER NOT ENCOMPASSED BY PROFESSOR DAVID'S STATEMENT

  93. As I agree with the submissions made by Miss de Haas and Mr. Dodds, I can deal with a number of the arguments advanced on the mother's behalf quite shortly.
  94. (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 [1997] 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) [2001] 2 FLR 1316 (REM)

  95. This is a decision of Miss Elizabeth Lawson QC sitting as a deputy High Court Judge. Miss Lawson is a respected practitioner in the Family Division, and a former Chair of the Family Law Bar Association. Her views are, accordingly, entitled to great respect. I therefore need to examine Re M in some detail.
  96. Re M concerned a child who, at the age of six months, was admitted to hospital suffering from an occipital fracture, bilateral chronic subdural haematomas and retinal haemorrhages, injuries classically associated with non-accidental shaking and impact. A joint police/social services investigation concluded that the child had suffered non-accidental injuries which could have been inflicted at different times by different people at any time up to five weeks before the admission to hospital. Both parents denied inflicting the injuries, and claimed that they had no knowledge of how the injuries were caused, or by whom.
  97. However, during the causation hearing in care proceedings relating to the child, the mother wrote an account in which she admitted responsibility for the injuries. On that basis, counsel for the mother made what the deputy judge described as "a strong application" that she should not have to give evidence. The deputy judge overrode the submission, and regarding her as a compellable witness, insisted that she did so. There were, the deputy judge said, discrepancies between her statement and that of the father which, in fairness to him, needed to be clarified.
  98. The mother's description of the circumstances in which she came to injure the child led to the local authority making a care plan for therapy and further assessment designed to see whether the child could safely be cared for by the parents in the future. That was the background against which the application for disclosure was made by the police.
  99. The deputy judge refused the application. Basing herself on the guidelines laid down in Re C, she started from the premise that it was for the person seeking disclosure to make out a positive case to justify breaching the code of confidentiality in family proceedings. She also properly reminded herself that all the passages in the various authorities were not statutory provisions, and that it was generally unwise to interpret them without regard to the facts of the case in which they were uttered.
  100. The deputy judge went carefully through the various Re C factors, and identified the following as bearing particular weight: -
  101. (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.

  102. In these circumstances the deputy judge came to the conclusion that the factors she had identified outweighed the countervailing public interests in the investigation of criminal offences and the prosecution of offenders. Accordingly, she refused the application for disclosure. She also made a number of more general observations.
  103. In my judgment, Re M is a careful and well reasoned application of the exercise of a judicial discretion based on the Re C criteria to the particular facts of a particular case. I have no doubt the deputy judge was correct in the decision she reached. However, none of the four crucial factors which prompted the exercise of the deputy judge's discretion not to order disclosure is present in the instant case. These are: (1) the mother's frankness in admitting what she had done; (2) the fact that it was in the interests of the child to be rehabilitated to his mother; (3) that rehabilitation could only be attempted within a narrow and immediate time scale which would be vitiated by a re-opened police investigation; and (4) albeit of lesser importance, the fact that the deputy judge had insisted on the mother giving oral evidence.
  104. 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

  105. I agree completely with Professor David that the primary function of the court in care proceedings is to protect children, although, of course, in the process of so doing it also has the duty to find facts and provide a fair hearing for the parties before it. I also join him in deprecating any trend by which lawyers advise their clients to remain silent in family proceedings in order to protect their own interests rather than those of the children in the case.
  106. Where I respectfully part company with Professor David is in the remedy he proposes. I do not agree with him that child protection generally, and the work of paediatricians in particular, would be enhanced by the court, as a matter of policy, routinely refusing disclosure to the police of information relevant to the investigation of serious criminal offences. In the instant case, the police are engaged in a murder inquiry. It is difficult to imagine anything more serious.
  107. I also do not accept the proposition that an abuser of children is more likely to tell the truth if he or she knows that there is a policy of non-disclosure to the police in care proceedings. Of course I accept that the mother's lack of frankness in the current proceedings derives in large measure from her fear of being prosecuted. But she has not been frank from the outset. At no point has she told the truth about what happened to A and T. So whatever motivates her not to tell the truth has motivated her throughout certainly from well before the care proceedings were instituted. In particular, she did not tell the truth to the casualty officers on any of the two children's various emergency admissions to hospital, when there was no question of care proceedings. One of the reasons for that lack of frankness may well have related to her fear of prosecution, but it had nothing to do with any question of confidentiality in the care proceedings. Yet had she told the truth to the doctors in casualty, protective measures could and would have been taken and neither child need have died.
  108. In my experience, it is rare for abusive parents to tell the truth to the hospital casualty officer or the treating doctor about the causes of their children's injuries. I agree with Miss Lawson in Re M when she says, at [2001] 2 FLR 1316 at 1325 that "it should never be under-estimated how difficult it is for any parent in this situation to face up to what they have done and to speak frankly about it, even in the most favourable circumstances". This accords with my experience over many years. However, I do not think that it is exclusively fear of prosecution which renders it enormously difficult for parents to acknowledge that they have abused their children. The very act of abuse, and the fact that the parent was capable of committing it, are both often difficult to acknowledge. In addition, amongst other factors, there is the effect on the relationship with the other parent, the current partner and other members of the wider family.
  109. In the instant case, the maternal grandmother remains convinced that the mother is innocent, and the father continues to find it extremely difficult to accept that the mother has behaved in the way I have found. My assessment of the mother is that she would find it impossible to admit to either that she had killed the two children. Parental denial in this area is, in my experience, both endemic and multifactorial, and I am not therefore satisfied that a policy of non-disclosure to the police would necessarily make it easier for parents to tell the truth.
  110. Equally, however, I have to say that I do not think such a policy can be justified in the instant case. I repeat Professor David's question. Who are we trying to protect? The mother or AB? Professor David and I agree that it is AB. But AB has been protected by the proceedings. So why should an adult who may have unlawfully killed two children, or another adult in similar circumstances who has been guilty of serious sexual or physical abuse of a child escape further investigation by the police? If one stands outside the case for a moment, and looks at it from the standpoint of the disinterested observer, a refusal of disclosure to the police of information likely to assist them in a murder enquiry would, I think, be met with bemusement
  111. (2) Professor David's argument that the possibility of disclosure to the police inhibits the proper diagnosis of injuries to children.

  112. I take this argument from a distinguished and committed Consultant Paediatrician very seriously. However, and whilst recognising, of course, that I am not a clinician, I do not believe that the consequences which Professor David fears would flow from any decision of mine to order disclosure in this case.
  113. The first point is, of course, that what I believe to be a correct diagnosis of what happened to A and T has been achieved in the instant case notwithstanding both the mother's effective refusal to participate in the proceedings, and her overall lack of frankness. I have to say that, in my experience, the failure of a parent to co-operate or to be frank has rarely prevented the court making findings of fact about what has happened to a child, although identification of the perpetrator of the injuries has sometimes proved impossible: see, for example, the well known case of Lancashire County Council v A [2000] 2 AC 147.
  114. The second point is a repetition of that which I have made in paragraph 80 above. Casualty officers and treating paediatricians are frequently required to make diagnoses of abuse with inaccurate and sometimes positively misleading information about what has happened. Nobody suggests, however, that a treating paediatrician who believes that a child has suffered non-accidental injuries does not have a duty to report the injuries to the police and to the child protection team of the local authority. Good child protection practice and interdisciplinary working requires that this is done. Equally, nobody suggests that the treating doctor should give the parent a guarantee of confidentiality in return for the truth about the child's condition.
  115. (3) Professor David's examples

  116. In support of his position that parental failure to co-operate with experts in care proceedings may lead to mis-diagnosis by the expert of the cause of the child's injuries, Professor David gives five examples in which interviews of parents by a paediatrician had a pivotal impact on the outcome of the case and were responsible for avoiding what he describes as "potential child protection errors". He then asks, rhetorically, if we are content to set those aside in order to ensure the principle that the work of the police is paramount.
  117. I do not, of course, accept the premise of Professor David's rhetorical question. It is not a question of the work of the police being "paramount". The question, in each case, is which public interest prevails on the facts of the particular case. However, I need to look at the examples he gives in order to test the proposition he advances. In doing so, I recognise that a refusal to take part in the interview, or to co-operate with the interviewer, was never an issue in any of the cases; that it was parental co-operation or what emerged from the interview-which enabled a true diagnosis to be made; and that had the parents in question been advised to refuse to take part, a false diagnosis would have resulted.
  118. The five examples are as follows: -
  119. (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.

  120. My reaction to these examples is that in numbers (1) (2) and (4) the parents were innocent and thus anxious to co-operate with the investigation in order to find out what had happened to their child. There was no question of self-incrimination. In my experience, this is how innocent parents behave. I quite agree with Professor David that legal advice to such parents not to be interviewed would have been quite wrong; but it was not given, and there was no reason for it to be given.
  121. Clearly, if the father's lawyers in case (3) had advised him not to take part in the paediatric overview, the child would not have been protected. But once again, the parents' case (supported by the treating doctors) was that the injuries were due to natural causes. There was no reason not to take part in the interview. Furthermore, the father did not admit during the interview to suffocating the child: that was the paediatrician's diagnosis.
  122. In case (5) both parents were denying responsibility. If the father was facing criminal charges, he might have been advised not to co-operate in a paediatric interview, but as he was innocent, he did so. The mother had no reason not to co-operate, as she was not, it appears, under suspicion.
  123. I entirely agree with Professor David that parental failure to co-operate with an expert paediatric investigation may lead to mis-diagnosis, and would have done in the five examples he gives. I also agree that every encouragement should be given to parents to co-operate. The question is whether parents accused of abuse would behave differently, or be advised differently, if there was a policy of non-disclosure of material to the police. Nothing in Professor David's examples persuades me that such a policy would have made any difference to the behaviour of those parents or the advice of their lawyers. It is to the question of legal advice to which I now turn.
  124. (4) The propriety of legal advice not to co-operate: legal professional privilege

  125. Like Professor David, I strongly deprecate legal advice given to parents not to agree to be interviewed by an expert witness or by the guardian ad litem. He describes it as a perversion of the system because it gives priority to protection of the adult over the interests of the child. Whilst I would not use such strong language, I agree with the sentiment behind it. Such advice also gives no weight to the effect of section 98(2). However, it cannot, in my judgment, be described as professionally improper.
  126. Lawyers who represent parents in care proceedings have a very difficult task. Despite the non-adversarial nature of the proceedings, their primary duty is to their clients, and their relationship with their clients is governed by the only fully confidential relationship recognised by the law, namely legal professional privilege.
  127. Legal professional privilege was described by Lord Taylor of Gosforth CJ in R v West Derby Magistrates' Court ex parte B [1996] AC 487 at 507. After conducting a review of the authorities, the Lord Chief Justice said:
  128. "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."

  129. The doctrine of legal professional privilege applies in the Family Justice System. In In Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, the majority of the House of Lords drew a distinction between what they described as "legal advice privilege", which was absolute, and "litigation privilege" which attached only to the written reports of third parties commissioned by the client for the purpose of legal proceedings. The latter was not applicable in the non-adversarial, quasi-investigative nature of Family Justice. This case thus confirmed the practice in family proceedings, that any report obtained from an expert by a party must be disclosed to the other parties and to the court.
  130. However, the speeches for the majority did not go on to express any opinion on dicta of Thorpe J (as he then was) in Essex County Council v R (Note) [1994] Fam 167, 168-9 when he said: -
  131. "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.

  132. A lawyer whose client admits child abuse in a conversation covered by legal professional privilege is placed in a very difficult position. Lawyers have a professional duty not to mislead the court, and plainly cannot conduct the parent's case in a manner which is inconsistent with any admission made to them. However, lawyers cannot, without the consent of their clients, breach or waive the privilege. Thus although lawyers may advise their clients to be open and honest with the court, they are also entitled, without breaching professional standards, to advise parents in care proceedings that, subject to section 98(1) of the Children Act 1989, they are not bound to co-operate with the court's investigation. They should, however, in my judgment, advise their clients that anything they say to an expert witness in the context of the latter's investigations, is protected by section 98(2) of the 1989 Act.
  133. Neither the judge nor the expert witness knows or is entitled to know what has passed between lawyers and their clients. Thus although Professor David rightly deprecates advice given to parents not to co-operate with the expert witness, that advice cannot, in my judgment, be designated improper, however undesirable its consequences may be in practice.
  134. I have not had experience of lawyers advising their clients not to answer questions from a treating clinician in order to avoid self-incrimination. I would, however, regard it as improper for lawyers to advise their clients that they should withhold relevant information from any clinician treating their child. The lawyer's advice to the client in child cases must always be to tell the truth.
  135. In addition, whilst advice to remain silent in care proceedings up to the point of being required to file a statement or to give oral evidence is not professionally improper, it is, in my judgment, not only poor practice, it also has the disadvantage, from the client's perspective, that unless there is good reason for it, a failure to co-operate is likely to give rise to the court drawing an adverse inference against the parent in question. Innocent parents, in my experience and as Professor David's examples show, are only too anxious to find out what has happened to their children. Furthermore, a parent cannot refuse to answer self-incriminating questions in the witness box.
  136. (5) The undertakings sought from Professor David by the mother's solicitor

  137. The undertakings sought from Professor David by the mother's solicitors, in my judgment, went much too far and were wholly inappropriate. Experts should not be distracted from their clinical investigation by lawyers. If a legitimate doubt exists about what an expert is seeking to do, it should be referred to the court. Any legitimate anxiety about the nature of the expert's interview can be catered for, if necessary, by it being tape recorded, or by the parent being accompanied at the interview by her solicitor or a third party. I do not think Professor David would have objected to either course. The report will also be subject to the scrutiny of the other experts in the case, and the court, and the expert will be subject to cross-examination on it.
  138. As I have already stated, Mr King was at pains to stress that at all times the mother's legal team knew that a promise of absolute confidentiality was impossible, and that whatever Professor David said or did, the court would retain its discretion to override any promise of confidentiality he made. Since this is the case, the solicitor should not, in my judgment, have sought the undertakings set out in paragraph 24. For the reasons Professor David himself gives, it was particularly improper, in my view, to attempt to persuade Professor David not to retain his notes.
  139. It was, however, equally wrong, in my judgment, to require Professor David not to reveal any answer made by the mother during the interview to any non-party without the court's permission. In paragraphs 49 and 50 I gave examples of the circumstances in which what a parent discloses in interview may require immediate reference to the police.
  140. I also wholly deprecate the power sought by the solicitor to veto any question which the expert might put. This is not a police interview. How is such a condition a means of achieving frankness? It seems to me to be the opposite. The expert asks a question which, if truthfully answered, will lead to the truth. Because a truthful answer may incriminate the parent, the solicitor advises the client not to answer it. The mother in this case does not appear to have been advised that her answers to Professor David were covered by section 98(2) of the Children Act, and thus inadmissible in criminal proceedings.
  141. The fourth condition seems to me, once again, unsatisfactory and an interference with the expert's clinical freedom to write his report as he chooses. As I have already stated, the remedy for the mother lies in cross-examination (and if need be an application to the court for the instruction of another expert) if the expert witness has strayed outside the bounds of his expertise.
  142. It follows in my judgment that Professor David should not have been asked to give any of the undertakings sought. Such a request, in my judgment, is bad practice and should not be repeated.
  143. I have considerable sympathy for Professor David in the dilemma in which he found himself. Nonetheless, and appreciating that he was placed in an almost impossible position, he should not, in my judgment, have agreed to the three remaining undertakings and he should not, in particular, have given an assurance that he would not disclose the contents of his report to any third party "under any circumstances". Being an honourable man, Professor David regards himself as bound by his promise. It is not, however, a promise he should have given, and is not one by which he could properly be bound. -
  144. The reasons why I take this view are, I hope self-evident from the examples I have given in paragraphs 49 and 50. I should, perhaps, make it clear that Professor David was quite right to state (as he did in the first paragraph of the "Special Confidentiality Notice" set out in paragraph 27) that his report could not be disclosed without the permission of the court. My concern in this context derives in particular from the second undertaking he was asked to give (set out at paragraph 24(2)) and incorporated by implication into the body of the second paragraph of the Special Confidentiality Notice.
  145. (6) The argument that experts will be deterred from accepting instructions to advise in children's cases (paragraph 37(3) and 38)

  146. The expert advice of paediatricians in cases of child abuse is of the greatest importance to the Family Justice System, and if experts are going to be deterred from undertaking the work by legal advice given to parents not to co-operate, that is clearly a matter of great concern.
  147. The court cannot compel parents to co-operate with an expert witness. Refusal to do so, however, as I made clear in paragraph 101 is likely to lead to the court drawing an adverse inference against the parent concerned, particularly since anything the parent says to the expert is covered by section 98(2) of the Children Act 1989.
  148. The court does not want to interfere with the way in which experts go about their enquiries. Thus, if a particular expert, such as Professor David, makes it clear that he cannot accept instructions to advise in a particular case unless he can interview both parents, and if the parents refuse to co-operate, the expert will decline to become involved. The problem in the instant case arose because Professor David was only alerted at the last minute to the fact that the mother was only prepared to be interviewed on particular terms. It also has to be said, I think, that not every paediatrician instructed to provide an overview of a particular case would find it necessary to interview the parents.
  149. The loss of expertise from the case if a paediatrician of Professor David's calibre declines instructions is, of course, a matter of regret. There is, however, no simple solution to the problem, and in particular I do not believe it would be solved if the parent knew that nothing said to the expert would be likely to be relayed to the police.
  150. CONCLUSIONS:

    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)

  151. In the instant case, I am in no doubt at all the in Re C balance comes down firmly in favour of disclosure. Two children have died. If, as I have found, their mother was responsible, very serious crimes may have been committed. The alleged offences could not be more grave, and Professor David's report and the minutes of the experts' meeting are of direct relevance to the police enquiry (Guideline (7)). The public interest identified Guideline (6) is particularly strong here.
  152. As to encouraging frankness (Guideline (4)) the simple fact is that the mother has not been frank in the proceedings. She has not given evidence. In her interview with Professor David she did not make any admissions against interest. She has maintained her denial of responsibility. There is no question of rehabilitation of the child with her, and her contact with the child will be the subject of gradual reduction. She has left the father and the child with the enormous problem of explaining to the child the facts relating to his brothers' deaths, without any explanation or understanding from the mother of how they came about.
  153. For the reasons I have given, I do not accept the argument that a refusal to order disclosure in this case will encourage frankness in others. I think it highly unlikely that a parent in this mother's position will in any circumstances admit to killing a child. In any event, this mother has not done so.
  154. AB's interests (Guideline (1))

  155. A highly important factor which I have to weigh, of course, is the welfare and interests of AB. Is AB likely to be adversely affected by an order for disclosure? AB is now 7. He is rapidly reaching the stage at which he will need to have truthful, albeit age appropriate explanations for his mother's increasing absence from his life. On the basis of my findings, irrespective of the outcome of any criminal proceedings following disclosure and further police investigation, he will have the enormous burden of growing up in the knowledge that his mother was responsible for the deaths of his two brothers.
  156. It is, of course, easy to say that it is not in AB's interests for his mother to be prosecuted as a consequence of disclosure. It may well be (assuming a prosecution) that whatever safeguards the Crown Court puts in place, information about the trial will leak to the children at AB's school, with the result that he may be picked on or ostracised. As against this, AB is the subject of a care order, and has the resources of the local authority at his disposal. The local authority is being advised by the consultant psychologist to whom I referred in paragraph 10 who, I am confident, will guide not just AB but his wider family through any criminal process involving the mother.
  157. In these circumstances, whilst this particular factor weighs in the scales against disclosure (and whilst a prosecution is likely to be stressful both for AB and his wider family) the weight to be given to it is, in my judgment, substantially reduced by the resources available to mitigate its effects.
  158. The remaining guidelines

  159. As to the welfare of other children generally (Guideline (2)), I have no evidence that the mother is a danger to other children. It is accepted by the local authority that the threshold criteria are not satisfied on the basis that AB is at risk of physical harm from his mother. In so far as the welfare and interests of other children generally refer to the public interest in the protection of children from harm, I see nothing in this case to derogate from the general proposition that those responsible for the deaths of children should face a criminal investigation and, if the evidence is sufficient, prosecution.
  160. Guidelines (5) to (8) inclusive seem to me in this case to early substantial weight, for the reasons I have given. By contrast, section 98(2) (Guideline (9)) bears minimal weight as the only relevant statements are those in answer to Professor David in interview, none of which was self-incriminatory. Guideline (10) does not apply.
  161. In my judgment this is a case in which, having completed its task in the care proceedings by protecting the surviving child to the best of its ability, the court should pass the relevant medical evidence (the minutes of the meeting of experts and Professor David's report), together with the corrected version of the judgment in the causation hearing, to the police. That will, accordingly, be my order.
  162. What can the Family Division do to encourage frankness in children's cases?

  163. I am very conscious that this judgment, despite its length, contains very little positive thinking about how the Family Justice System can address the important issue of public policy to encourage frankness in children's cases. Despite the limitations I have imposed on myself, I think it-nonetheless appropriate for me to make three particular points.
  164. The first is that this is, of course, an interdisciplinary issue, and it may well be that developing the law on a case by case basis is an unsatisfactory way of proceeding. It may be that further thought needs to be given to the inter-relationship between the family courts and the police. The family courts regularly expect the police to disclose to them information relating to criminal investigations and proceedings. It may be that thought should be given to a protocol to be worked out between the crown prosecution service and the family justice system relating to mutual disclosure of information which, inter alia, identifies criteria for cases in which the former thinks prosecution likely to be appropriate, so that family lawyers are able to give their clients realistic advice about the likely attitude of the police and the Crown Prosecution Service to disclosure in a particular case. Alternatively, this is an issue which could be addressed by the proposed Family Justice Consultative Council, as and when that body comes into existence.
  165. Secondly, however, whilst I do not, from my own experience, agree with Miss Lawson's statement in Re M cited by Mr. McFarlane and set out in paragraph 40(3) and, in particular, her assertion that disclosure to the police is "almost routinely ordered", her decision in that case, in my judgment, conveys a number of positive messages which can be given to parents. The first is that a frank acknowledgement of the way in which they have treated their children is a vitally important first step towards rehabilitation. Secondly, if parents acknowledge the harm they have done and genuinely want help in ensuring that there is no repetition in the future, rehabilitation is likely to be in the children's interests, and the courts will do their best to facilitate it. In such cases, and dependent upon the gravity of the injuries, the court may well conclude, as Miss Lawson QC did in Re M that the public interest in encouraging frankness has greater weight than the public interest in the prosecution of serious crime, and any application for permission to disclose the papers to the police may be refused.
  166. The third point is that whilst section 98 of the Children Act is untested in the criminal context it represents, in my judgment, a substantial degree of protection against the legal effects of self-incrimination and is thus a positive incentive to frankness. The courts release papers to the police to enable them to investigate, not to enable them to prosecute. Section 98, in my view, is an important factor which should not be underestimated. In particular, the terms of section 98(2) make it quite inappropriate for any parent not to co-operate with an expert witness.
  167. In my judgment, however, none of this is inconsistent with the public interest in the prosecution of offenders. A parent who admits or is found to have killed, tortured or committed other grave offences against a child cannot seriously expect the information to remain confidential. The Family Courts must continue to hold the balance.
  168. THE CORONER

  169. I have already stated that the coroner's inquest into the death of T stands adjourned. Professor David asks about the status of his report if permission is given for it to be disclosed to the police. Will the police be entitled to show it to the Coroner? If not, will the Coroner have to go through the process of seeking disclosure from the court?
  170. Professor David is also concerned about his position if the police or the coroner were to issue witness summonses requiring him to attend court to gave evidence either to the Coroner or to the Crown Court.
  171. I did not hear argument addressed to this particular point, but in principle if the Coroner, who is investigating the cause of T's death, wishes to have sight of papers generated by care proceedings, he would have to make an application to this court for disclosure, unless the order in favour of the police permitted the police to release the report to the Coroner. That application would be decided in accordance with the principles laid down in In Re C.
  172. Realistically, since I have decided that there should be disclosure to the police, it would seem to me that similar principles would apply to the Coroner, and that, in particular, Swinton Thomas LJ's propositions (5) and (8) in In Re C would have particular application. There is, however, currently no application by the Coroner, and the police have not sought permission to disclose the report to him.
  173. The answer to Professor David's second point is that he can be ordered to attend either court to give evidence, and would be bound to do so. He would, however, in my judgment, need the permission of this court to reveal any information which he had obtained in the course of his enquiries in these proceedings. It is to avoid precisely this sort of unsatisfactory position that propositions (5) and (8) of In Re C are in point. Ultimately, whether or not Professor David gives a statement to the police or the coroner is a matter for him, but in principle it is difficult to see why he should not do so.
  174. Expert witnesses are in a special position. Their duty is to the court and to the child with whom the court is dealing. But if their evidence in the Family Proceedings is required for use in criminal proceedings, and if the court gives permission for that evidence to be released, the expert plainly has a duty to co-operate with the police in enquiries arising out of the family proceedings.
  175. SUMMARY

  176. The principal messages resulting from this judgment are, I think, the following:
  177. (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) [1997] 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.

    FOOTNOTE

  178. I have identified Professor David by name in this judgment, with his agreement, because I would not wish him to be in any way inhibited (either in writing about the issues raised in it or discussing them at conferences) by the need to conceal the fact that he was the paediatrician at the heart of the dilemma. That apart, however, the judgment has been deliberately written anonymously, and the usual rules apply.


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