Application to restrain communication of judgment to the police
The mother was exonerated and, ultimately, the children remained in her care subject to a supervision order. The father applied for an order prohibiting the local authority or any other party from communicating any information to the police or CPS. The police filed a statement asking for ‘disclosure of any information that had come to light in these proceedings indicating the perpetrator of [the child’s] injuries 'in order that the decision to prosecute that person can be taken'. The court was dealing with the father’s restraint application since, as will be seen, over the entitlement of a party to proceedings to pass information to the police.
Baker J reviews the law fully in relation to communication of material from care proceedings.
Re X and Y was specific to the father having admitted causing injury, so Children Act 1989, s 98 (self-incrimination by the father) was relevant to the issue on the law, but it is not directly relevant to the question of release of the judgement to the police. What could be released to the police by the local authority from the children proceedings? If the local authority or any other party had released the second judgement complied with the police request it could have been a contempt; though, in the light of the provisions of FPR 2010 (considered below), the father applied for an order preventing release of the judgment to the police.
Baker J referred first to the Administration of Justice Act 1960 s 12(1) and then considered the relevant rules. Section 12(1)(a) provides that, where proceedings are held in private, publication of information in relation to the proceedings is not on its own a contempt, save in relation to children proceedings. Rules or order of the court may alter or disapply these provisions (see, eg,
A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497;
Re J (A Child), sub nom Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523).
Communication of information in children proceedings
FPR 2010 now makes specific provision for ‘communication of information’ (the title of FPR 2010 Part 12 Chapter 7 and the practice direction which supports it) in children proceedings. FPR 2010 r 12.73(1) provides as followed:
'12.73 Communication of information: general
(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –
(a) where the communication is to [various individuals and bodies such as the legal representative of a party, Legal Aid Agency, a court appointed expert etc, formally entitled to receive information];
(b) where the court gives permission; or
(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.'
PD12G lists communications in children proceedings which can be passed on to particular bodies or individuals. Paragraph 2.1 sets out a table which deals with ‘any information relating to the proceedings’. It enables this information to be passed on by specified individuals – for example, a party, legal representative or others lawfully in possession of the information – for specified purposes, other than the proceedings. For example, a party or a legal representative can pass information to a person conducting ‘an approved research project’. Any communication in accordance with the provisions of PD12G is, by para 1.2, ‘Subject to any direction of the court ...’; that is subject to any other court order – such as that sought by the father in
Re X and Y.
The local authority – one of the specified individuals, as a party to the proceedings – did not need permission under r 12.73(1)(b) because this is required by the police for a criminal investigation which came within the terms of para 2.1. The text or summary of the judgment was included within what could be communicated. The position under the rules, as summarised by Baker J, is as follows:
'[16] Thus the scheme of the current rules is that communication of information relating to care proceedings falls into three categories:
(1) communications under r 12.73(1)(a), which may be made as a matter of right;
(2) communications under r 12.73(1)(c) and PD 12G paras 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; and
(3) other communications, which under 12.73(1)(b) may only be made with the court's permission.
Plainly, whereas the onus in respect of proposed communications under r 12.73(1)(b) lies on the party seeking permission to communicate, the onus in respect of communications that would otherwise be permitted under r 12.73(1)(c) and Practice Direction 12G paras 1 and 2 lies on the party contending that such communication should not be permitted.'
Re EC and disclosure of material from care proceedings
Baker J treated
Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, [1997] 2 WLR 322, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725 as still the leading authority on release of information to the police; though the relative importance of the factors identified in
Re EC might shift with the passage of time. That case was decided under a much earlier version of the rules for children proceedings; it was likely that the current rules and case law would make the courts more, rather than less, disposed towards release to the police.
The factors in
Re EC listed by Swinton Thomas LJ (at 85 and 733 respectively) and as relevant here 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, 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 ...;
(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, school, etc. This is particularly important in cases concerning children;
(9) …;
(10) Any other material disclosure which has already taken place.
Any order for communication in
Re X and Y would be limited to ‘criminal investigation’. Any further communication by the police, for example for disclosure in a criminal trial, would only be with permission from the court, as the judge made clear at paras [21] and [25].
Baker J affirmed the view of Thorpe LJ in the Court of Appeal in
Re H (Care Proceedings: Disclosure) [2009] EWCA Civ 704, [2009] 2 FLR 1531 as to the importance of
Re EC:'[35] As indicated in Re H by Thorpe LJ, Re EC remains the leading authority when deciding whether to disclose confidential information arising in care proceedings. The analysis conducted by Swinton Thomas LJ was comprehensive and the 10 factors identified by him all remain relevant to such a decision.'
The relative importance of the 10 factors may have changed over the years [36], Baker J said; but he was clear that the
Re EC factors in favour of communication of the judgment on the restricted terms he ordered was justified (paras [38]-[55]). Baker J emphasised the factors listed at (5) to (8), especially in relation to the importance of co-operation between all agencies involved with child protection and the public interest in the administration of justice.
He draws particular attention to the 2013 Protocol:
'[46]… The importance of such co-operation – recognised by the courts at the time of the Re EC decision – is now perceived as being crucial in maximising the protection given to children. This recognition underpins the recently published 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).
[48] Linked to this … is the fifth factor identified by Swinton Thomas LJ – the public interest in the administration of justice, and the argument that barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice. Again, the importance of this principle has been widely accepted, and it is again reflected in the terms of the 2013 Protocol.'
Public interest in the investigation of crime
Baker J went on to support the ‘public interest in prosecution of serious crime and the gravity of this offence’ by reference to factors (6) and (7) and by drawing attention to the fact that it is not the job of a judge, but of the police, to investigate crime:
'[49] As has been acknowledged by many judges on previous occasions – for example, Baron J in Re M (Care: Disclosure to Police) [2008] 2 FLR 390 at para [18] – it is the police who have a duty to investigate crime and it is the CPS which has a duty to decide whether to bring criminal charges. It is not for the family court to decide whether prosecutions should be brought or pursued. Disclosure of the judgment will enable the police and CPS to decide whether or not to pursue the criminal investigation. In carrying out the balancing exercise as to disclosure of the judgments, this court recognises the importance of not impeding those bodies from carrying out their statutory duties.'
The 2013 Protocol and the references in FPR 2010 provide the framework for co-operation in communication between local authorities, the police and the family courts. It remains to be seen to what extent it can specifically be relied upon in individual cases to assist with such communication for the help of abused children.
You can follow David Burrows on Twitter: @dbfamilylawThe views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.
