X Children, Re

The family court may authorise disclosure of material from care proceedings for use in related criminal proceedings where the balancing exercise clearly favours disclosure. Section 98 of the Children Act 1989 does not prevent disclosure, although statements made in family proceedings cannot be used against the maker in evidence for an offence other than perjury. They may be used to challenge an inconsistent account or attack credibility. The interests of children include ensuring that related criminal proceedings result in a fair and accurate sentence. Relevant material may also be disclosed to compensation authorities and future-care services where this is in the child’s best interests. The criminal court remains responsible for deciding the admissibility and use of disclosed material.

Further disclosure applications arose during care proceedings concerning four children. The father had been compelled to give evidence about the sexual abuse of his daughter, and had made limited admissions which the family court considered incomplete and untruthful. Mrs X sought permission to use extracts from his evidence and the threshold criteria document in a victim impact statement. The local authority sought permission to disclose the evidence to the police and Crown Prosecution Service, specified documents to the Criminal Injuries Compensation Authority, and relevant case papers to adult services. The central issues were whether disclosure was justified, how section 98 of the Children Act 1989 affected the use of compelled evidence, and what material should be disclosed.

1. Disclosure for criminal proceedings. The applications succeeded. Applying the balancing exercise described in Re X (Children) [2007] EWHC 1719 (Fam), the reasons favouring disclosure were compelling. Disclosure was necessary to ensure that the Defendant was sentenced fairly and on an accurate account of the criminality, rather than on a false account advanced in mitigation.
2. Section 98. The statutory scheme balances compellability under section 98(1) of the Children Act 1989 with the protection in section 98(2). The Crown could not use the disclosed family evidence against the Defendant in evidence to prove the offence. It could, however, use it to challenge an account inconsistent with his family-court evidence or to attack his credibility, consistently with Kent County Council v K [1994] 1 WLR 912 and Re L (Care: Confidentiality) [1999] 1 FLR 165.
3. The Defendant’s lack of cooperation was relevant to the disclosure decision, although disclosure was not imposed as a punishment for non-cooperation. Privacy, confidentiality and the encouragement of frankness did not outweigh the need to prevent a distorted sentencing picture in the circumstances of this case.
4. Other disclosure. The specified documents were properly disclosed to the Criminal Injuries Compensation Authority because they were relevant to the full assessment of B’s claim and were in her best interests. Relevant case papers were also properly disclosed to adult services because they were essential for future support, therapy and a smooth transition from children’s to adult services.
5. The criminal court, not the family court, would ultimately decide whether and to what extent section 98(2) applied in the criminal proceedings. The orders did not trespass on that jurisdiction.