Hayley Griffiths (instructed by Wansbroughs ) as agents, for the local authority; Shona Rogers (instructed by Richard Griffiths & Co ) for the mother; Paul Storey QC and Alexa Storey-Rea (instructed by Wollen Michelmore ) for the father; John Ker-Reid (instructed by Beashel Graham ) for the children, by the children’s guardian.
The local authority had brought care proceedings following the discovery that Y, one of the two children of the family, had sustained injuries. A fact-finding hearing had been conducted, leading to the “first judgment”, published anonymously; the unredacted version had not been communicated to anybody, including the police. That judgment had concluded that the parents had not told the truth about the circumstances in which Y had sustained the injuries, that the local authority had proved on a balance of probabilities that Y sustained the injuries non-accidentally whilst in the care of one or both of the parents, that it was not possible to state whether the injuries were sustained as a result of one or more incidents, nor to identify which parent was responsible and it was probable that one of the parents was responsible for the injuries and the other was knowingly withholding information so as to protect the perpetrator. Two days after the delivery of that judgment, the father had confessed that he had inflicted the injuries and, following that development, the parents had separated. After a further fact-finding hearing the “second judgment”, transcribed but not released for publication nor disclosed to the police, had concluded, on a balance of probabilities, that the injuries had been inflicted by the father in the manner described in his statement and that the local authority had not proved that the mother knew or ought to have known that the father had injured or was likely to injure Y, or that she had failed to protect the children. The mother having been thus completely exonerated, the case was ultimately resolved, following further assessments, by the rehabilitation of the children with the mother. The father’s lawyers had filed an application for an order preventing or prohibiting the local authority, or any other party, from disclosing any material contained within the proceedings to the police or the Crown Prosecution Service (“the CPS”). As a result, the local authority had refrained from passing on any information concerning the findings to the police. Following the discovery of Y’s injuries, the police had carried out an investigation but, having concluded that they were unable to determine which parent had caused the injuries, had closed their file under the heading "no further action". Subsequently, however, a detective sergeant had filed a statement seeking disclosure of any information that had come to light in the proceedings indicating the perpetrator of Y’s injuries “in order that the decision to prosecute that person can be taken”. The issue now was whether the local authority should be restrained from disclosing to the police transcripts of those two earlier judgments; the father, supported by the mother and, on balance, the children’s guardian, invited the court to direct that no party should disclose the transcript of either judgment to the police.
Disclosure ordered. The scheme of the Family Procedure Rules was that communication of information relating to care proceedings fell into three categories: (1) communications under FPR r 12.73(1)(a), which might be made as a matter of right; (2) communications under rule 12.73(1)(c) and paragraphs 1 and 2 of Practice Direction 12G, which might be made but were subject to any direction by the court, including, in appropriate circumstances, a direction that they should not be made; and (3) other communications, which under rule 12.73(1)(b) might only be made with the court’s permission. Plainly, whereas the onus in respect of proposed communications under rule 12.73(1)(b) lay on the party seeking permission to communicate, the onus in respect of communications that would otherwise be permitted under rule 12.73(1)(c) and paragraphs 1 and 2 of Practice Direction 12G lay on the party contending that such communication should not be permitted. In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, 85, still the leading authority, identified the matters to be considered when deciding whether to order disclosure and In re H (Care Proceedings: Disclosure) [2009] 2 FLR 1531, para 18 made it clear that the cases inevitably involved a fine balance, especially so (a) where a parent had made a confession within the confines of the family court, with all the consequential benefits within the family justice system and (b) where there was the ongoing possibility of rehabilitation, which might be impeded or harmed by further criminal investigations: but at the same time (c) where there was still, inevitably, a strong public interest in the investigation and prosecution of serious crime. Furthermore, in conducting the balancing exercise to determine whether to permit disclosure of material to the police, the court had to have in mind all relevant human rights, in particular those arising under articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (paras 16, 18, 20).
Here the balance clearly fell in favour of disclosure of the judgment to the police and the CPS, subject to clear directions for the court restricting further disclosure of the judgment or any information contained therein without permission of the court. The assaults inflicted on Y by the father had been serious. The amendments had been carefully crafted to enable the police to be informed of the judge’s findings and reasons, but to preclude any further use of the information in the judgment without the further permission of the family court. The public interest in the sharing of information between the agencies involved in child protection, and the removal of barriers between different branches of the justice system, had been recognised by the terms of Practice Direction 12G and were underlined by the terms of the 2013 Protocol. There might be cases where other factors outweighed the public interest but this case did not fall into that category. The welfare of the children would not be significantly affected simply by the disclosure of the judgment, provided the police and the CPS were precluded from disclosing it, or any information contained in it, to any person without the court’s permission. Indeed, in so far as disclosure of the judgment completed the exoneration of the mother, it might indeed buttress the children’s placement in her care and therefore perhaps improve their emotional security. If, having read the judgments, the police sought permission to disclose them, or information contained in them, to other persons the strong arguments advanced on behalf of the parents—in particular, by the mother, that further disclosure would have a seriously adverse impact on the welfare of these two children who had already suffered significant harm—would doubtless be deployed again. The fact that the argument had not persuaded the judge to preclude disclosure of the judgments should not be interpreted as any indication of where the balance might fall in the event of an application for further disclosure. The purpose of disclosing the judgment was to inform the police of the outcome of the fact-finding process in the care proceedings so that they could decide whether to pursue their investigation and make a further application for disclosure. Neither the police nor the CPS might disclose the judgments, or any information in the judgments, without permission. The order would make clear the limits of the disclosure permitted and any contravention of the rules or the order would be a contempt of court (paras 55–59).
Children Act 1989, s 98
Human Rights Act 1998, Sch 1, Pt I, arts 6,8