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CARE PROCEEDINGS/DISCLOSURE: Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam)

Date:13 FEB 2008

(Family Division; Munby J; 13 February 2008)

The father had made his autistic 13-year old daughter pregnant. In the course of care proceedings the father made only limited admissions as to the extent of his sexual abuse of the child. The care judge required the father to give oral evidence, but the evidence the father then gave was, in the judge's view 'certainly not the truth, the whole truth and nothing but the truth'. The threshold criteria document agreed by the local authority and the mother, which recorded the likely extent of abuse as being much greater than that admitted by the father, commented that the father had, by his ongoing silence on the issue of sexual abuse, prevented the proper management of, and support and therapy for the child, thereby causing her further and continuing emotional harm. The father was subsequently prosecuted for incest. The local authority sought permission to disclose the transcript of the father's care evidence to the police and the CPS, while the mother sought to disclose some of the father's evidence, and the relevant parts of the threshold criteria document in her victim impact statement.

Disclosure was not a punishment for non co-operation, but the extent to which someone in the father's position had or had not co-operated with the family court was not an irrelevant consideration. In the present case there had been a marked lack of cooperation. Under Children Act 1989, s 98 the relevant material could not be used against the father but could be used to challenge any account put forward in the criminal proceedings that was inconsistent with the father's evidence in the care proceedings. It was highly likely that the father would express remorse and shame in the criminal proceedings; he was unlikely to give evidence and was therefore unlikely to be challenged. Disclosure was needed to ensure that the father was not able to escape a fair sentence by peddling a false account in mitigation.