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England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> EF (a child), Re  EWFC B106 (14 July 2016)
Cite as:  EWFC B106
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IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF EF (a child)
B e f o r e :
|London Borough of Newham||Applicant|
|- and –|
|- and –|
|- and –|
|(By her Guardian Matthew Jeary)||3rd Respondent|
Mr Leslie Samuels QC and Mr John Ker-Reid for the Mother instructed by Desor & Co Solicitors
Mr Nicholas Goodwin QC and Mr Matthew Stott for the Father instructed by Duncan Lewis Solicitors
Mr James Shaw for the child instructed by TV Edwards solicitors
Ms Eleanor Wheeler for the Metropolitan Police Service
Hearing dates: 11th & 14th July 2016
Judgment handed down on 14th July 2016
Crown Copyright ©
i) DS consultant paediatric endocrinologist, reported on 2 February 2016 and amended on 24 March 2016;
ii) DJ, consultant radiologist placed a different complexion upon the timing of the fractures, reliant on a CT scan on 4 December 2015. He considered that the angle and way the x rays had been taken on the 10 and 24 November 2015 meant that an absolute comparison between them was not possible. He also reported for the family court;
iii) PD, consultant paediatrician reported on the 11 April 2016
The application by the Police
"MPS is investigating injuries to EF in accordance with FPR 2010 12. 73 (b) and the principles of EC (disclosure of material) (1996) 2 FLR 725, MPS seeks an order for the local authority to disclose the documents highlighted in the attached index of documents in the care proceedings, together with permission to disclose the above to the CPS for the purpose of making charging decisions and prosecution. MPS is under a duty to obtain all relevant information that it supports or undermines any allegation of criminal conduct under the Code of Practice under part 11 Criminal procedure and investigations act 1986 and the Attorney General's guidelines on Disclosure 2013. These documents are required for the CPS to use in making a charging decision and potentially the preparation and conduct of criminal proceedings subject to the restrictions of section 98(2) Children Act 1989".
The legal framework
The police have no automatic right to the disclosure of material filed within family proceedings. As set out by Baker J. in Re X and Y  1 FLR 1218, the communication of information from care proceedings falls, under FPR 2010 into three categories:
(a) Communications under r.12.73(1)(a) which may be made as a matter of right to certain defined persons;
(b) Communications under r.12.73(1)(c) and Practice Direction 12G paragraphs 1 and 2, which may be made, but are subject to any direction by the court, including, in appropriate circumstances, a direction that they should not be made;
(c) Other communications which under r.12.73(1)(b) may only be made with the court's permission;
The police application falls within (c) above, permission therefore being required. Accordingly per Baker J. "the onus…lies on the party seeking permission to communicate". There is no presumption in favour of disclosure to the police.
The Commissioner's application is brought pursuant to r12.73(1)(b) of the Family Procedure Rules 2010 ("FPR 2010") which gives the court a discretion to permit communication to third parties of information relating to children proceedings. Doing so would otherwise be a contempt of court under s.12(1)(a) of the Administration of Justice Act 1960.
Rule 12.73(1)(b) of the FPR 2010 represents a relaxation of the previous regime enshrined in rule 4.23(1) of the FPR 1991.
The principles governing whether disclosure should be made from family proceedings for the purpose of a criminal investigation are set out by Swinton-Thomas LJ in Re EC (Disclosure of Material)  2 FLR 725 CA ("Re EC"). They are:
(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, that 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 an 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, school 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.
'As the Court of Appeal acknowledged in Re H, however, the relative importance of the ten factors has inevitably changed over the seventeen years since Re EC was decided. In particular, the cloak of confidentiality surrounding care proceedings has been significantly lifted by the successive relaxation of the rules. There are now moves towards much greater transparency in care proceedings, for the reasons explained by the President on a number of occasions, most recently in Re P (A Child)  EWHC 4048 (Fam)'.
Father's Article 6 rights are plainly engaged. It is submitted that s.98 CA 1989 provides no counterweight to the potential breach of those rights if disclosure is ordered now. First, s.98 only prohibits the use of a statement made in family proceedings "in evidence", thus such statements may be used in a police inquiry into the commission of an offence. Second, the statutory protection afforded the family litigant by s.98 is in practice substantially eroded by the potential for the Crown to employ s.119 Criminal Justice Act 2003 in criminal proceedings – to admit previous inconsistent statements – see Munby J. (as he then was) in Re X (Children)  1 FLR 589 "it is to be noted that putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility does not amount to using those statements 'against' him within the meaning of the section".
In the absence therefore of protection under s.98, disclosure of material from family proceedings at this stage risks breach of Father's Article 6 rights. The police seek disclosure both of the parties' lay statements and the joint experts' reports. Neither the lay evidence nor the expert evidence is however complete. The prejudice to F principally lies in the disclosure of material that is still evolving.
They remind me:
As to the lay material, neither parent has been cross-examined and the court has yet to form any view about credibility. The court will be aware of the strong social work and independent social work evidence in favour of the parents yet the police do not seek disclosure of that. The parental portrait viewed by the police, if the application succeeds, would therefore be incomplete and, therefore, potentially inaccurate. That is no fair basis either for an investigation or for a prosecution.
The point has particular force as far as the expert evidence is concerned. All parties will be inviting the court to permit addendum reports in light of the recent test results. DS himself states that "these results do impact on my conclusions". Not only is the endocrine analysis therefore incomplete but, given the other experts' reliance on DS specialism, their views are too. It would be plainly unfair to disclose partially formed expert views to the police.
Reliance is placed by the Police on X v Y, a case where Baker j refused all applications for disclosure by the Police up until Judgment not least the self-evident basis that contemporaneous disclosure on evolving and incomplete evidence perhaps later to be discarded, discredited or traversed is obviously unfair. It is of note that the Police do not seek to adduce authority to rebut that proposition and practice.
The application of the factors in this case under EC
It is in EF's best interests to order the disclosure sought. It will allow the Commissioner to investigate the alleged offence(s) promptly and thoroughly, thereby minimising disruption to her life and maximising the chance of a just outcome being reached. Children involved in these types of proceedings themselves have an interest in there being proper disclosure, as per Munby J in Re X (Children)  1 FLR 589 (FD) at para 37.
EF's welfare does not require the disclosure of partially formed material to the police. An investigation pursued on the basis of such material risks unsettling both parents and therefore, potentially, her. M remains her primary carer. Whilst she may have an interest in "proper disclosure" (per MPS skeleton argument), this cannot be achieved at the present time given the evidence in the family case is still evolving. F rejects the suggestion that disclosure now would allow the police "to investigate the alleged offence(s) promptly and thoroughly" (per MPS skeleton). The police investigation could hardly be brought to an end at this stage, nor could its conclusions be thorough.
The welfare and interests of other children generally.
A submission like that should be reserved for cases where there is ground for suggesting that the possible offender may be a continuing, present or actual danger to children in general. This is obviously not the situation in the circumstances and history of this case.
56. The maintenance of confidentiality in children cases.
Miss Wheeler does not press this point upon me although it was developed in oral submissions.
57. The importance of encouraging frankness in children's cases.
Nor does Miss Wheeler press this as a factor in supporting disclosure
In contrast the parents' advocates urge upon me
It is submitted that both 3 and 4 above carry great weight (against disclosure) where the family proceedings have yet to reach the fact-finding stage.
I agree that for this court engaged in trying to work out happened so as to cause EF's injuries that the disclosure of this stage to the police will not assist the fact finding exercise that I am engaged upon.
58. 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.
Miss Wheeler's submissions:
The police and the Local Authority working towards the safeguarding of children should be working together at the earliest opportunity. This principle underpins the 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings ("the 2013 Protocol"). The MPS has already disclosed a large amount of information to the Local Authority; it is only fair that the same spirit of co-operation pervades now.
The Commissioner has a legal duty to pursue all reasonable lines of enquiry in relation to material that may be held by third parties, and if it appears that there is material which might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused, to take reasonable steps to obtain it pursuant to the Criminal Procedure and Investigations Act 1986, the Code of Practice under Part II, and the Attorney General's Guidelines on Disclosure December 2013.
Whilst this may be a forceful submission once the family court has heard the case and the process of gathering and hearing evidence complete, its merits run the other way if analysed now. No public interest can be served by the provision of incomplete material and the police proceeding half-informed;
This was a position supported by the mother
The parents argued:
Exactly the same may be said for the public interest in the prosecution of serious crime. There is an obvious public interest in the proper prosecution of serious crime but an obvious public interest against an inadequate investigation;
It is conceded that co-operation between the police and children's services is desirable, all other things being equal. By adjourning the application, the court would not be impeding that co-operation, merely ruling that the weight to be attached to it is better evaluated at a later date;
I prefer the analysis urged upon me by the parents.
62. 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 an important factor.
Miss Wheeler's point:
The alleged offence(s) is/are extremely serious and it is overwhelmingly in the public interest that the Commissioner/the CPS have all relevant material in order to investigate the offences thoroughly to allow the CPS to make a charging decision. This principle was affirmed in Re X at para 35: there is a 'powerful public interest in ensuring the proper administration of criminal justice […] without unnecessary let or hindrance by the family court' para 35.
And on behalf of the parents:
It is conceded that the alleged offence is grave. It is difficult to conceive of a police disclosure application from family proceedings in anything other than grave circumstances. Gravity however does not counterbalance the risks of disclosure on incomplete facts. Rather it compounds them;
I prefer the analysis adopted by the parents
63. 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.
Miss Wheeler's submissions:
EF's injuries are serious and complex and the expert medical evidence will be fundamental to determining how and when they were caused. The criminal investigation cannot proceed without medical evidence. If the Commissioner is required to obtain separate evidence that investigation will be delayed. It is not a reasonable or proportionate use of public funds to duplicate the expert evidence.
And on behalf of the parents:
The court is also invited to reflect on the practicalities of disclosure at this stage. The police appear to argue that costs would be saved if they were to use the experts appointed by the family court. This presents real difficulties for the process of family justice here. If the police contact the jointly instructed experts, each may express further relevant opinions. Those in turn would not have been given either under oath or under the express duties referred to in their letters of instruction. They would have to be disclosed into the family proceedings. The family court would have no control over them. This is particularly risky in the context of an evolving medical analysis.
There is nothing to prevent the police instructing its own experts, if indeed it considers it cannot wait to renew its disclosure application in Autumn 2016. Thus far it has waited 8 months to raise the issue of experts at all. It fails to identify from where the great urgency now arises.
I agree with the analysis on behalf of the parents
64. 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, school etc. This is particularly important in cases concerning children.
Miss Wheeler's submissions:
This factor is linked to (5) and again underpins the 2013 Protocol. The importance of co-operation between agencies dealing with the welfare of children is, 'crucial in maximising the protection given to children', per Baker J in Re X and Y at 46.
The parents' response:
It is conceded that co-operation between the police and children's services is desirable, all other things being equal. By adjourning the application the court would not be impeding that co-operation, merely ruling that the weight to be attached to it is better evaluated at a later date;
I accept the parents' analysis.
65. 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.
This is not a factor that Miss Wheeler has pressed upon me
The parents however remind me that:
The police raise other arguments in their recent skeleton which are addressed briefly here. First, the police are wrong to speculate about the relevance of s.98 to the present case. That section refers to "a statement or admission made in such proceedings" and therefore covers all the parents' evidence filed to date.
Second the argument that "the MPS, the CPS and the criminal courts themselves are under legal duties to evaluate the evidence and decide what weight to attach to it" is misconceived. Whilst the criminal justice system will undoubtedly evaluate evidence itself, the point has no force where the material, being incomplete, is incapable of final evaluation.
Third, and above all else, the police application fails to set out why the passage of two more months would prejudice its application. The court is invited to take judicial note of the fact that most police disclosure applications follow judgment (or at least are, by consent, determined after judgment). What takes this case outside the normal sequence? Despite two police skeletons being filed, counsel cannot identify any imperative. The police simply say that a refusal "seriously threatens to derail the criminal investigation. If a charging decision is made promptly it can inform the family judge in the fact-finding exercise". The "serious threat" is not spelt out. A charging decision would be ambitious with the evidence in its current state of flux. The subsequent reference to a "growing trend towards early disclosure" is neither evidenced nor principled. There is no substitute for the application of the Re EC test.
66. Any other material disclosure which has already taken place.
This is not a factor that has featured much in this case.
Mr Ker-Reid has reminded me that:
The Police already have disclosure of the hospital X-rays and scans and Dr L (G82). They are able to obtain the hospital records.
The application by the local authority for the production and inspection of the baby chair/ bouncer
ANONYMISED VERSION APPROVED ON 14.11.2016