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Inadequate police disclosure in care proceedings

Date:8 AUG 2018
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Family analysis: Following A Local Government v A and others [2018] EWHC 1819 (Fam), a hearing involving the death of a baby in suspicious circumstances, Gemma Taylor QC at 42 Bedford Row and Samantha Bowcock at 15 Winckley Square Chambers, stress the importance of disclosure of relevant material in care proceedings and examine the steps that police and local authorities should take in order to avoid compromising a case.

What are the practical implications of this case?

Inadequate police disclosure has become a growing problem in care proceedings, despite the existence of the 2013 Protocol and Good Practice Model: Disclosure of Information in cases of alleged child abuse and linked criminal and care directions proceedings. In this judgment, Knowles J builds on the suggestions made by Francis J in London Borough of Southwark v US and others [2017] EWHC 3707 (Fam), [2017] All ER (D) 147 (Dec) at para [110]. The President of the Family Division has seen it, and it is proposed that the 2013 Protocol will be re-issued and updated in due course.
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We are reminded that:
  • Family Procedure Rules 2010 (FPR 2010) (SI 2010/2955), Pt 21 provides for the disclosure of documents, which strictly speaking means stating whether a particular document exists. The next logical step is its inspection – the recommendations made provide for schedules of material to be provided first, followed by a consideration of which should be disclosed and then the release of the documents;
  • local authorities have a high duty in law to be open in the disclosure of all relevant material affecting a child, which may be of assistance to the parents in rebutting charges against one or both of them;
  • local authorities should take responsibility for ensuring that disclosure provided by the police is complete.

Knowles J advises that all police forces should immediately check their data management systems, and that local authority lawyers should:
  • check which data management system is being used to record and collate information in any case, and
  • confirm that the disclosure team in that force has access to the relevant system

In the Southwark case, Francis J recommended that a protocol request be made 14 days prior to the issue of proceedings under s 31 of the Children Act 1989, that seven days before a case management hearing (CMH) an application for disclosure is made to the police authority, and that the senior investigating officer should be invited to attend and be legally represented. The police should provide a descriptive list or schedule of all evidence and material in their possession that is relevant. At the CMH, the police will provide the court with details of offences, charges, bail conditions and their timescales. The police must make public interest immunity applications as soon as practicable if they oppose disclosure. The local authority should liaise with the police throughout. Schedules of new evidence or material should be provided before the final/fact-finding hearing.

Knowles J adds to this and suggests that the schedule from the police should contain all of the evidence and material in their possession at that time. There should be no obligation on the police to produce any of the evidence/material for inspection until agreement has been reached between the parties and the police as to what is relevant or the court has ruled on the matter.

The police should provide a copy of each adult’s criminal record at CMH and an updating schedule of evidence/material 14 days before an issues resolution hearing (IRH) or directions before any fact-finding hearing. This should identify:
  • what has been disclosed;
  • what has been deemed to be irrelevant;
  • anything which the court ruled should not be disclosed; and
  • any new material or evidence and whether disclosure is opposed in relation to each new piece of evidence and, if so, on what basis.

Having seen this schedule, the parties should let the local authority know what they consider to be relevant, and if there is agreement, the police should disclose the information to the local authority without delay. If disclosure is resisted, the police should make an application to the court.

There should be a meeting between the local authority solicitor (preferably with the advocate conducting the case) and the police disclosure team five days before any IRH or pre-hearing review (PHR). The parties must agree prior to this meeting what the police are to know about the family proceedings. It should be authorised by the court as part of the directions at a case management hearing. It should be recorded in the interests of transparency.

Ideally all parties to proceedings would be involved, but publicly funded advocates are unable to claim payment to attend. At the IHR/PHR, the police should provide the court with a signed declaration that the court’s order for disclosure has been complied with.

What was the background?

An eight-week-old baby had died in suspicious circumstances. Both parents were subject to ongoing criminal investigation.

In the course of a fact-finding hearing, it came to light that Lancashire police held material of relevance to the case which had not been disclosed. The hearing was delayed and could have been compromised altogether. The problem had arisen because the disclosure team within the police did not have access to the case management system for complex and serious investigations (known as HOLMES2) and the officer in charge did not have an idea of what could be relevant to the issues in the family proceedings.

What did the court decide?

Parties must continue to follow the 2013 national protocol for disclosure, and it is recommended that they also follow the guidance set out by Francis J, expanded upon by Knowles J.

Gemma Taylor is a leading specialist in public law care and adoption proceedings. She has particular expertise in the most difficult cases that involve complex medical evidence and serious injuries. She is a member of the Family Law Bar Association and the Association of Lawyers for Children.

Samantha Bowcock regularly appears in the High Court in cases where it is alleged that the death, serious injury or sexual abuse of children has occurred at the hands of parents or family members. She is recognised by Chambers and Partners for, inter alia, her work ethic and fearless advocacy, and is particularly noted for her representation of children in complex public law cases.

In A Local government v A and others, they were leading and junior counsel for the mother

Interviewed by Kate Beaumont.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial