H (Children)

Police applications for disclosure of material from children proceedings require a balancing exercise under the disclosure rules in force. The court must weigh child welfare, confidentiality and frankness against the administration of justice, investigation and prosecution of serious crime, and cooperation between family and criminal justice agencies. The 2005 amendments created a materially wider, though structured, regime permitting specified disclosures to the police without leave. Ignoring that regime is a material error. Disclosure to the police is controlled information-sharing with responsible professionals, not publication to the public. The court may need to examine documents individually, particularly where admissions, rehabilitation and criminal investigation compete.

The Chief Constable of Sussex appealed against HHJ Stephen Lloyd’s order of 23 February 2009 in Brighton County Court. The order refused disclosure of parental statements, expert medical reports, and judgments or agreed facts from care proceedings concerning serious injuries to a child. The father opposed disclosure. The local authority supported disclosure of medical material and threshold recitals, but not the father’s admissions. The central issue was whether the judge’s balancing exercise was flawed because he had not been referred to the 2005 changes to the Family Proceedings Rules 1991, and whether the application should be reconsidered under the applicable rules.

Appeal allowed and remitted. Bodey J held that the refusal of disclosure could not stand because the judge had conducted the balancing exercise without considering the material change made by the 2005 amendments to the Family Proceedings Rules 1991.

1. The former Rule 4.23 regime was materially more restrictive. Rule 10.20A introduced a wider but carefully structured regime allowing information from children proceedings to be communicated without permission in defined circumstances, including certain communications to police officers for criminal investigation. The 2009 amendments did not materially alter that position for present purposes. The current rules therefore had to inform the exercise of discretion.
2. The relevant balance remained fact-sensitive. It included child welfare, confidentiality, frankness, the administration of justice, the public interest in investigating and prosecuting serious crime, the gravity of the alleged offence, inter-agency cooperation, the effect of Children Act 1989, section 98(2), fairness and oppression, and any disclosure already made. The factors had no fixed order of importance. A parent’s confession, possible rehabilitation and the public interest in criminal investigation could require document-by-document consideration and input from the Children’s Guardian.
3. Lord Justice Thorpe agreed with the order and reasons, adding that disclosure to the police is controlled sharing between responsible professionals in parallel justice systems. It should not automatically be treated as publication or as placing the material in the public arena. The public interest favours cooperation between the family and criminal justice systems.
4. Future applications should identify the named child-protection officer who will receive the material, state the purpose of disclosure, and seek authority for onward sharing with the Crown Prosecution Service where appropriate. Any order should define the authorised recipient and permitted use precisely.

The matter was remitted to the County Court for reconsideration under the applicable rules, with the application to be amended and determined by HHJ Coates or another designated judge.

• Court of Appeal (Civil Division)—allowed the appeal and remitted the disclosure application for reconsideration under the applicable rules: [2009] EWCA Civ 704.
• Brighton County Court—HHJ Stephen Lloyd refused the Chief Constable’s application for disclosure by order dated 23 February 2009.