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CARE PROCEEDINGS: Re H (Care Proceedings: Disclosure) [2009] EWCA Civ 704

Date:23 JUN 2009

(Court of Appeal; Thorpe LJ and Bodey J; 23 June 2009)

Care proceedings were begun when the third of the mother's four children was found to have sustained serious head injuries and other fractures. The man living with the mother was the father of the youngest child, but not of the other three children. The man confessed to having caused certain of the third child's injuries, and he later filed a threshold confession document. An interim order was made on the basis that the injured child and his two elder siblings would not be rehabilitated to the mother, but there was an outstanding issue as to whether the youngest child, the man's own child, could be rehabilitated to the mother, who had separated from the man. The man accepted that he would have no further contact with the older children, but wanted to remain involved in the life of his own child, the youngest child. The police, supported by the local authority, applied for disclosure of certain documents in the care proceedings, to assist with a criminal investigation into the injuries to the third child. The man opposed such disclosure; the mother and guardian were neutral. The judge refused disclosure, having followed the traditional guidelines for the balancing exercise in disclosure applications. It was not clear from the documents precisely who would be in receipt of any disclosure, but during the hearing the court was informed that the recipient would be an officer in the child protection unit.

The judge had not been referred to Family Proceedings Rules 1991, r 10.20A, which had replaced the old r 4.23, and which was the applicable rule at the time, although, following a further change, the relevant rule was now r 11 of the 1991 Rules. Rule 10.20A had introduced a more permissive regime of an automatic right to make wider disclosures without the disclosing party being in breach of court. The careful balancing act which the judge had performed without taking account of the new regime could not stand, since it was based on a flawed perception of the degree of confidentiality generally ascribed to children proceedings by the rules. Awareness of the fact that disclosure could now be made to the police in prescribed circumstances without the permission of the court would have influenced the judge's decision, and might have tipped the balance the other way. Such a decision still required a fine balancing exercise, especially when the strong public interest in the investigation and prosecution of serious crime was to be judged in the context of a confession by a parent made within the confines of the family court, with all the consequential benefits to the family justice system, and when there was the ongoing possibility of rehabilitation, which might be impeded or harmed by further criminal investigations. The case was to be remitted to the county court for further consideration pursuant to the now-applicable rules. There might be a need for document-by-document consideration of the written materials, including input from the guardian.

The judge had been wrong to observe that disclosure to the police put the document into the public arena; when the police applied for disclosure of documents in care proceedings, they were seeking a sharing of information between two justice systems working side by side. In this case, the application by the police had named the applicant as the litigation solicitor at police legal services, whereas in fact the applicant had been the Chief Constable; in future an application for disclosure brought under r 11 or otherwise should contain a clear statement of the identity of the named officer within the child protection unit to whom the Chief Constable sought release. There should be an equally clear statement of the purpose to which the information was going to be put. The order needed to be similarly specific in its definition of the person to whom the release was authorised and the purpose and use to which the officer must put the material. Once the application was properly prepared and carefully drafted, the judge who determined it would be able to draw on the application in drafting the order, assuming that the application succeeded. A police application for disclosure should also contain an application for the exercise of a discretion by the named officer to share the documentation with the Crown Prosecution Service, in the event that his conclusion was that the material merited referral to the CPS. It was plainly absurd for the family justice system to be burdened with two applications when only one was essentially required; an application first for release to the investigating officer to be followed subsequently by a freestanding application for onward release to the CPS was simply wasteful of time and resources.