A (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Lord Justice McCombe,Lady Justice King |
| Judgment Date | 25 March 2020 |
| Neutral Citation | [2020] EWCA Civ 448 |
| Date | 25 March 2020 |
| Docket Number | Case No: B4/2020/0022 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 448
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
Her Honour Judge Redgrave
ZE18C00641
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice King
and
Lord Justice Holroyde
Case No: B4/2020/0022
Mr Christopher Miller (instructed by Blackfords llp) for the Father
Mr John Buck (instructed by Metropolitan Police Service) for the 1 st Respondent
Mr Brian Jubb (instructed by A London Borough) for the 2 nd Respondent Local Authority
Mr Steven Ashworth (instructed by Charmini Ravindran Law) for the 3 rd Respondent Mother
Hearing date: 13th February 2020
Approved Judgment
This is an appeal against an order made by Her Honour Judge Redgrave on 20 December 2019 whereby, upon the application of the Commissioner of the Metropolitan Police Service (“the Police”), she ordered the disclosure of a number of documents which had been filed in care proceedings.
The issue before the court is whether the judge was wrong to order the disclosure of the documents in question.
Background
The care proceedings were issued following injuries having been sustained by a baby, J, when he was 9 weeks old and in the care of the Appellant (“the father”) and the 2 nd Respondent (“the mother”).
At the end of a lengthy finding of fact hearing, the judge made findings against the backdrop of J having sustained brain injuries of the utmost severity which injuries have left him “very severely disabled”.
The key findings were as follows:
1. J's injuries were caused by a shake, either with or without an impact on a soft/ semi-yielding surface;
2. The force used was beyond normal handling;
3. The injuries were inflicted at some point after his normal feed at 16:00 and 19:00 on 5 October 2018;
4. Whoever shook J would have been aware that he/she went beyond normal handling;
5. The possible perpetrators were the mother or the father.
The fact-finding judgment was handed down on 25 November 2019. The judge ordered that the judgment should be disclosed to the police in the normal way pursuant to PD12G 2.1 Family Proceedings Rules 2010 (“FPR 2010”), the rule which permits a judgment in care proceedings to be disclosed to the police “for the purpose of a criminal investigation”. The judge adjourned any further application for disclosure to a hearing on 20 December 2020.
Following extensive discussions between the parties at court on 20 December 2019, agreement was reached that disclosure should be ordered in relation to documents which were set out in, what became, Schedule A to the judge's order. This list of documents is extensive and includes the expert medical evidence, statements from members of the extended family and accounts given by family members to various treating physicians. It was agreed by all the parties that such comprehensive disclosure was relevant and appropriate as one of the findings made by the court had been that the accounts given by the mother, the father and various members of the extended maternal family had changed over time.
Agreement could not be reached between the advocates in relation to the disclosure of documents referred to in Schedule B of the order. These documents are:
30/10/2018 First Statement of the Father
21/11/2018 Second Statement of the Mother
29/04/2019 Second Statement of Father
30/04/2019 Further Statement of the Mother
01/11/2018 Public Law Outline Case Analysis (Summary of Parents Account only)
These documents then are the narrative statements in which the parents gave accounts of the circumstances which they say gave rise to J sustaining his injuries, together with the Guardian's note of the accounts given to her by the parents. The statements do not contain any admissions by either the mother or the father. It is accepted by the father that the documents would be relevant to the police's investigation as to whether criminal charges should be brought against either him or the mother in relation to J's injuries.
On 20 December 2019, the judge conducted a substantive case management hearing during which she dealt with a large variety of issues. Having had the benefit of position statements and oral submissions in relation to the dispute as to disclosure, the judge gave a brief ex tempore judgment allowing disclosure of the documents in Schedule B.
The Re EC Checklist
The court was taken to the guidance in Re C (A Minor) (Care Proceedings: Disclosure) [1997] 2 WLR 322 sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, referring to the case (as I will in this judgment) as the “ Re EC checklist”.
In Re EC, Swinton Thomas LJ set out at p85 D onwards, a checklist designed to be applied by judges when considering an application to disclose evidence which had been filed in care proceedings. Swinton Thomas LJ started by saying that:
“In the light of the authorities, the following are among the matters which a judge will consider when deciding to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case.”
The checklist then follows:
“1. The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor;
2. The welfare and interests of other children generally;
3. The maintenance of confidentiality in children cases;
4. The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of Section 98 is to encourage people to tell the truth in cases concerning children and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. however, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given;
5. The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice;
6. The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
7. The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order;
8. The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children;
9. In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations;
10. Any other material disclosure which has already taken place.”
Unfortunately, the parties (and therefore the judge) were unaware that the Court of Appeal had, some months earlier on 31 July 2019, considered in Re M (Children) [2019] EWCA Civ 1364 ( Re M) whether, some 23 years after it had been decided, Re EC remained “fit for purpose”. Sir Andrew McFarlane P said in this regard:
“28. The acknowledged and longstanding authority on the approach to be adopted by a court when determining an issue of disclosure of documents from family proceedings to the police is the decision of this court in Re C.”
The President then went on to set out the ten factors referred to above. He continued:
“30. Despite the passage of over twenty years all counsel in the present appeal accepted that Swinton Thomas LJ's distillation of the relevant law in Re C has continued to be the leading authority to which all levels of the Family Court regularly turn when determining applications for disclosure of material to the police.”
It had been submitted to the President in Re M that the Re EC Checklist had (at [44]) “set the threshold in applications for disclosure under Re C so low that almost any application is bound to succeed” and that an alternative test should be formulated drawing upon the Supreme Court decision in Bank Mellat v Her Majesty's Treasury (no 2) [2013] UKSC 38; [2013] UKSC 39; [2013] AC 700.
As in the present case, the statements the subject of the application for disclosure in Re M did not contain any material that might incriminate either of the parents in any criminal activity. The President (who had called the checklist the Re C checklist) dealt in detail with the right to silence and the privilege against self-incrimination. Relevant to the present appeal, he said:
“65. An analysis of the privilege against self-incrimination in the present case cannot be conducted in a vacuum and without reference to the evidential reality of the case, which is that the parents' witness statements and position statements do not contain any material that might incriminate either of them in any criminal activity. If the contrary were the case, Mr Moloney's submissions might begin to gain traction, but without some indication that the relevant...
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