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CARE PROCEEDINGS: Re X; Northumberland County Council v Z, Y, X and the Government of the Republic of Kenya [2009] EWHC 498 (Fam)

Date:7 MAY 2009

(Family Division; Munby J; 16 March 2009)

The child, born in Kenya, was abandoned within days of birth and placed in a Kenyan children's home. The British couple brought the child to the UK using a false Kenyan birth certificate and a false Kenyan passport, and concealed her presence from the local authority. When the local authority became aware of the situation, the child was taken into foster care and care proceedings were initiated. Eventually the Kenyan government was joined as a party. The court rejected the couple's application to adopt the child, and ruled them out as future carers for the child, the child was subsequently returned to Kenya, and adopted there. The local authority was now seeking permission to disclose the judgment in the case to the police and immigration authorities, with a view to safeguarding against other children entering the UK unlawfully, and to assist investigation into whether or not the couple should be charged with any offence. The government of Kenya, whose children's department had been privy to documents as party, was seeking permission for the disclosure of various documents in the case to other government departments, including the criminal investigation team; some of this disclosure had already taken place.

Merely because a local authority was a party to proceedings, it did not follow that every officer and every elected member was entitled to see the papers in the case. There must at the very least be a legitimate need to have access for some proper purpose, and even that would not necessarily suffice to permit disclosure without prior judicial sanction. The same must be true for any other corporate litigant, including a foreign government. The Kenyan government had acted throughout in good faith, but in future courts must spell out clearly the limitations and conditions attached to the use of documents generated in family proceedings by a corporate party to those proceedings. The illicit transfer, abduction, sale or trafficking of children and young persons across international boundaries was a matter of the greatest and most pressing concern, requiring the closest cooperation, nationally and internationally, not merely at the level of policy making, but also at the operational level, between all those concerned. Disclosure would be granted in both cases. Such disclosure was not going to benefit the child in the case, but equally, it was not going to damage the child's interests in any way, and it was in the public interest, particularly given the pressing need to take all appropriate steps to protect other children from what had befallen the child. In ordering disclosure the family court was not choosing to punish the couple further, but was rather co-operating with the criminal justice system to ensure the proper administration of criminal justice without unnecessary let or hindrance by the family court. In relation to the disclosure to the Kenyan government, the demands of comity ranked high, and only by international cooperation at all levels would problems of this sort be avoided in the future. The only qualification was that disclosure to the Kenyan government should be subject to a condition that the material would not be used as direct evidence against the couple in any criminal or extradition proceedings against them, other than in the investigation stage, or to challenge inconsistent statements or the credibility of the couple.