Re K (Minors) (Care Proceedings: Disclosure)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Family Division |
Evidence – parent prosecuted for offences against children – evidence relevant to the criminal proceedings given in care proceedings – whether court should give leave for statement made in care proceedings to be disclosed for use in the criminal proceedings.
In October 1993, in care proceedings under Part IV of the Children Act 1989, orders had been made relating to four young children. In those proceedings it was common ground that two of the children, girls aged 7 and 4, had been sexually abused but there was an issue as to whether or not the father was the perpetrator of the abuse. The case against the father depended upon two statements made by the mother: one made to the police on 10 August 1993, the other made in the care proceedings on 23 August 1993. In the care proceedings Booth, J found that the two statements were so inconsistent that no reliance could be placed upon them. As a result of the mother's statement to the police, on 18 August 1993 the father was charged with the rape of the two children.
The father applied pursuant to r 4.23 of the Family Proceedings Rules 1991 to disclose documents adduced in the Children Act proceedings for use in the course of his defence in the criminal proceedings. The specific documents he applied to disclose were: (i) statements filed by the mother in the care proceedings and a transcript of her oral evidence in those proceedings; and (ii) transcripts of video recorded interviews with the children. Also, as counsel in the criminal proceedings had not acted for him in the care proceedings, the father sought leave to enable counsel to see all the documents in the Children Act proceedings.
Held – granting leave: (1) The principles which the court had previously applied in wardship cases in deciding whether or not to give leave for disclosure were equally applicable to Children Act cases.
(2) The father sought leave to disclose the statements made by the mother in the Children Act proceedings so as to challenge her credibility as those statements were inconsistent
with her police statement. If the mother were to be cross-examined in the criminal proceedings as to her previous statements then those statements must be made available pursuant to s 5 of the Criminal Procedure Act 1865. Their production would not be to the detriment of the children concerned. In fact, it was greatly in their interests that the father should have a fair trial. It was also greatly in the interests of justice that there should be no impediment to a fair trial. In balancing the importance of the confidentiality in Children Act proceedings against the public interest in seeing that the ends of justice were properly served, in the present case the discretion should be exercised to permit disclosure.
(3) It was submitted on behalf of the mother that since her statements in the Children Act proceedings could be used to discredit her evidence in the criminal proceedings, they could be said to be used against her and, therefore, would not be admissible under s 98(2) of the Children Act 1989. However, that provision prevented a statement in Children Act proceedings being used against a person or his spouse in criminal proceedings and, in criminal proceedings, evidence could be used only against an accused person. It could not be said to be used against a witness to challenge his or her evidence. In the present case the statements on which the father sought to rely did not incriminate him but, on the contrary, would assist him in his defence to charges made against him. Although the mother was potentially at risk of being charged with wasting police time, on the facts of this case this was a very remote possibility. If it was likely that the statements would not be admitted by the criminal court, then no purpose would be served by disturbing their confidentiality. In the present case it was likely that the mother's statements would be admissible in the criminal proceedings. Consequently, in all the circumstances, leave would be given for their disclosure.
(4) The father also sought leave to disclose the transcripts of the video recorded interviews with the children. As the children were young and as they were not to be directly involved in the criminal proceedings there could be no detriment to them if leave for disclosure was...
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