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Edward Bennett
Edward Bennett
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CARE PROCEEDINGS: Re P (Care Proceedings: Disclosure) [2008] EWHC 2197 (Fam)
Date:4 SEP 2008

(Family Division; HHJ Hunt (sitting as a judge of the HC); 4 September 2008)

The care proceedings concerned a 10-week-old child who had been admitted to hospital with multiple injuries. Both the child's parents suffered from learning disabilities. An expert report had been prepared, setting out the severity of the father's disability. At the causation hearing the father gave evidence and it was clear that he had great difficulty in coping with the stress of questions in a formal setting. Ultimately the father did not object to a schedule of findings agreed by the other parties, and no judgment was produced. The police received informally some information as to things said by the father at the hearing, and sought disclosure of either the transcripts of the hearing or the agreed schedule of findings.

It was very unusual for a court to refuse to disclose such information to the police, but in this case the balance tipped in favour of maintaining confidentiality, although the expert report concerning the extent of the father's learning disability was to be disclosed. In this case the family judge was uniquely placed to offer a view as to whether the administration of justice would be served by the re-activation of a criminal investigation. The court was particularly anxious that the written material available for disclosure could not convey safely and fairly a solid foundation for a police investigation of a suspect labouring under a learning difficulty; it was relevant that no sentencer, properly applying modern sentencing principles, could contemplate a penal sanction for punishment of this father. The court drew attention to an important lesson for practitioners: in future cases any challenge to communication or disclosure to the police of matters arising from a causation hearing was to be promptly notified to the court, the local authority, the child's guardian, any other parties, and the police. This would alert all parties to the requirement that communications under Family Proceedings Rules 1991, r 10.20, para (3) could be made only under a court direction under r 10.20, para (2), and would also provide the police with timely notice of the need to apply to the court for any disclosure sought in the face of expressed objections.