Re EC (Disclosure of Material)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,LORD JUSTICE HENRY,LORD JUSTICE ROSE |
| Judgment Date | 31 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0731-1 |
| Docket Number | FAFMI 96/0854/F |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1996 |
[1996] EWCA Civ J0731-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION) BIRMINGHAM DISTRICT REGISTRY
(MR JUSTICE WALL)
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
Lord Justice Henry
Lord Justice Swinton Thomas
FAFMI 96/0854/F
MISS E HINDLEY QC and MR C ADAMS (Instructed by Legal Services, West Midlands Police Authority, Birmingham, B3 3HN) appeared on behalf of the Intervenor
MR D HERSHMAN (Instructed by Solihull Metropolitan Borough Council Legal Department, Solihull, B91 3ES) appeared on behalf of the Applicant
MISS J PARKER QC and MISS D EATON (Instructed by Messrs Brendan Fleming, Birmingham, B4 6TZ) appeared on behalf of the First and Second Respondents
MISS THOMAS (Instructed by Messrs Anthony Collins & Co, Birmingham, B2 5HG) appeared on behalf of the Third Respondent
MR R SPON-SMITH (Instructed the Official Solicitor, London) appeared as Amicus Curiae.
Wednesday, 31st July 1996
SC was born on 22nd November 1994. She died on 17th January 1995. Her parents were Mr and Mrs C. The police were aware that SC had sustained serious injuries prior to her death. The parents had another child, C, who was born on 14th December 1993. The Local Authority took the view that C was likely to suffer significant harm if she remained in her parents' care and applied for a Care Order under the provisions of section 31(2) of the Children Act 1989.
That application was opposed by the parents. The case was heard by Wall J in October 1995. On 20th October the judge committed the care of C to the Local Authority. In the course of the hearing the father admitted that he had thrown SC on to a settee on 14th January 1995, resulting in injuries which caused her death.
With the leave of the judge, the Local Authority wrote a letter dated 7th November 1995 to Detective Chief Inspector A Lancaster of the West Midlands police force as follows:
"I write to confirm our telephone conversation of 23 October concerning Mr C's evidence during care proceedings. In evidence, Mr C admitted to throwing SC on the settee on 14 January 1995 prior to the ambulance being called. Therefore, he admitted causing the injury which caused her death. As a result of medical evidence particularising the time the fatal injury occurred, this excluded Mr and Mrs F from being there at the relevant time."
Mr and Mrs F were SC's grandparents and they, together with the father and the mother and one other, were possible suspects in relation to the injuries which caused SC's death. Prior to the hearing before the judge, the police had made extensive inquiries and had interviewed a large number of witnesses but no prosecution had been commenced and the police had formed the view that on the available evidence there was no realistic prospect of securing a conviction against any of the suspects.
The West Midlands Police Authority made application to the judge for disclosure of various documents in the care proceedings relating to C pursuant to rule 4.23 of the Family Proceedings Rules 1991. They sought disclosure of: (a) the statements made in the proceedings by the parents; (b) the medical reports and the evidence of the doctors in the Care Proceedings; and, (c) such parts of the transcript of the evidence and the judgment which relate to SC's injuries and their causation, including the medical evidence, the evidence of the parents and the evidence of other members of the family.
In his order dated 8th May 1996, Wall J granted leave to disclose to certain named persons in the West Midlands Police Force and the Crown Prosecution Service the medical evidence and the transcripts of the oral evidence given by the medical witnesses. He refused leave to disclose the statements made by the parents or those parts of the transcript of the evidence and judgment relating to the injuries sustained by SC and the causation thereof, including the evidence given by the mother and the father and other members of the family.
The Police Authority and the parents appeal against the judge's order with his leave. The Police Authority contend that the material that they require is vital to the police investigation and that the evidence given by the medical forensic experts as to the cause of death would be of great assistance to the police in an expeditious conclusion of their investigation. They concede that the expert witnesses can be interviewed again but they assert, clearly rightly in my view, that the evidence given in the Care Proceedings would be of the greatest assistance to them.
The evidence was tested in the Care Proceedings and, further, it would be wasteful of time and resources for the police to commence the inquiries in relation to medical evidence all over again. Further, and vitally, they submit that the precise evidence given by the father and other members of the family will be of great assistance to the police in focusing the direction of the inquiry, the nature of their interviews and the precise issues at which the evidence, in particular the expert medical evidence, should be directed. They submit that the judge has a complete discretion to order disclosure of any material generated in Care Proceedings, including material to which Section 98(2) of the Children Act applies.
Miss Parker QC for the parents submits that policy considerations relating to the encouragement of co-operation between various responsible bodies and the parties in cases concerning children are so strong and so important that the judge should not have ordered any disclosure. She stresses that the parents participated in the preparation of a questionnaire for the assistance of the medical experts. She says that the Police Authority are at liberty to re-interview the medical experts. Above all, Miss Parker stresses the very strong public interest in encouraging frankness in children cases in the Family Division and that this concept underpins the provisions of Section 98.
In relation to the statements and admissions governed by Section 98 of the Children Act, it is submitted by Miss Parker that the judge should have held that he had no discretion to give leave to disclose those statements. Alternatively, it is submitted that as a matter of public policy such discretion ought never to be exercised where statements of admission sought to be disclosed are governed by Section 98 and, further, if that should be wrong, then the judge was right to exercise his discretion in the way that he did in respect of that material. Miss Parker submits further that the word "proceedings" in Section 98 extends to include a police investigation.
Section 98 of the Children Act 1989 provides:
"(1) In any proceedings in which a court is hearing an application for an order under part IV or V, no person shall be excused from -
"(a) giving evidence on any matter; or
"(b) answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse of an offence.
"(2) A statement of admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury."
Rule 4.23 of the Family Proceedings Rules 1991 is in these terms, under the heading "Confidentiality of Documents":
"(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court relating to proceedings to which this Part of the Act applies shall be disclosed other than to —
(a) a party,
(b) the legal representative of a party,
(c) the Guardian ad litem,
(d) the Legal Aid Board, or
(e) a welfare officer,
without leave of the judge or district judge."
Section 12 of the Administration of Justice Act 1960 provides, under the heading, "Publication of information relating to proceedings in private":
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say -
(a) where the proceedings
(i) relate to the inherent jurisdiction of the HighCourt with respect to minors;
(ii) are brought under the Children Act 1989; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not in itself be contempt of court except where the court (having power to do so) expressly prohibits the publication."
The judge formulated the issues that arose on this summons in this way:
"(1) Does the court have a discretion to disclose to the police material generated by proceedings under Part IV of the Children Act which is clearly governed by section 98(2) of the Children Act (in this instance an admission by a father in evidence that he caused the fatal injury to his child) in order to enable the police to shape the nature and range of the inquiries they undertake into the investigation of an alleged criminal offence?
"(2) If the discretion exists, how does it fall to be exercised? In particular, what weight should be given to the public interest which underlies section 98(2) namely that of encouraging frankness in proceedings relating to children by preserving confidentiality?
"(3) Should I order disclosure to the police of confidential material generated by the proceedings which is not expressly covered by section 98(2), in particular the medical...
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