London Borough of Lewisham v D & Ors

Disclosure from private care proceedings to the police is governed by a fact-sensitive balancing exercise. Relevant considerations include the administration of justice, the investigation of serious crime, the relevance and importance of the evidence, inter-agency co-operation, the welfare of the children and confidentiality. The list is non-exhaustive and the children’s welfare is important but not paramount in this exercise.

Separate applications for disclosure should be considered separately where disclosure of family-proceedings material may later be followed by an application concerning material held by the police. DNA samples obtained in criminal investigations may be used only for the statutory purposes permitted by the Police and Criminal Evidence Act 1984.

The local authority brought care proceedings concerning four children. The police were investigating suspected assaults and possible child trafficking. DNA testing had been undertaken within the care proceedings, while a DNA sample had also been obtained from the first respondent during the criminal investigation.

The Commissioner of Police applied at the first stage for disclosure of the children’s DNA samples, profiles and comparison report. The application was opposed on confidentiality, proportionality, human-rights and relevance grounds. The central issue was whether the children’s DNA material should be disclosed to assist the criminal investigation, leaving any later application concerning a DNA match for a second stage.

1. The application was granted. The court ordered disclosure of the children’s DNA samples, profiles and comparison report to the Commissioner of Police, subject to satisfactory safeguards concerning storage and destruction.
2. The court applied the balancing approach in Re C (A Minor) (Care Proceedings: Disclosure) / Re EC (Disclosure of Material). The relevant factors included the administration of justice, the prosecution of serious crime, the gravity of the suspected offence, the relevance and importance of the evidence, co-operation between agencies, the welfare of the children and the maintenance of confidentiality. The list was non-exhaustive, and the factors could not be ranked in advance.
3. The suspected offence was serious and the DNA evidence was fundamental to the investigation. The public interest in co-operation between the family and criminal justice systems therefore weighed strongly in favour of disclosure. The children would not be directly adversely affected by the order because no further samples were sought.
4. Disclosure interfered with the children’s rights under article 8 of the Convention, but the interference was lawful, necessary for the prevention of crime or protection of the rights of others, and proportionate. The children’s welfare was important in the balancing exercise but was not paramount.
5. The first and second stages had to be considered separately. The court declined to determine at the first stage whether later disclosure of evidence derived from the mother’s police-held DNA would be permissible. Different considerations might arise at the second stage.
6. There was no material distinction between disclosing the children’s DNA report and disclosing the samples themselves. A report alone was unlikely to satisfy continuity requirements in a possible prosecution, and requiring a further application would serve no useful purpose.
7. The court accepted the principle stated in The London Borough of Lambeth v S C V J & others that samples retained under section 64 of the Police and Criminal Evidence Act 1984 could not be disclosed for family-proceedings purposes outside the statutory purposes.

First-instance decision. No earlier appellate decision was stated in the judgment.