X And Y (Children: Disclosure of Judgment to Police)

Disclosure of judgments from care proceedings to the police is governed by the statutory and procedural scheme for confidential family proceedings. Where disclosure is permitted subject to the court’s direction, the court must balance the children’s welfare, confidentiality, frankness, fairness, the administration of justice, inter-agency cooperation and the public interest in investigating serious crime.

The Re EC criteria remain relevant, although the relative weight of confidentiality has changed as disclosure rules have been relaxed. The absence of a warning that an admission might be disclosed is a factor in the balancing exercise, but does not create an absolute bar or establish a breach of Article 6. Disclosure may be staged and strictly controlled, with further dissemination requiring permission.

In care proceedings concerning two children, the court had found that the father had inflicted serious injuries on one child and that the mother was not responsible. The children were subsequently rehabilitated with the mother, subject to supervision and supervised contact between the father and the children.

The local authority sought to disclose the judge’s first and second judgments to the police and Crown Prosecution Service after the police had closed their investigation without identifying the perpetrator. The father, supported by the mother and, on balance, the guardian, sought an order restraining disclosure. The central issues were whether disclosure would infringe the father’s Article 6 rights and where the balance fell under the family-proceedings disclosure rules.

1. The father’s application to restrain disclosure was refused. Disclosure of the first and second judgments, and of the judgment in the present application, to the police and Crown Prosecution Service was permitted subject to strict directions preventing further disclosure or discussion without the court’s permission.
2. The court followed the approach in Re C (A Minor) (Care Proceedings: Disclosure), also reported as [1997] Fam 76, [1997] 2 WLR 322 and [1996] 2 FLR 725, and confirmed in Re H (Care Proceedings: Disclosure), [2009] EWCA Civ 704. The ten Re EC factors remained relevant. They included the welfare of the children and other children, confidentiality and frankness, fairness to a person who had incriminated himself, the administration of justice, cooperation between agencies, the public interest in prosecuting serious crime, the gravity and relevance of the alleged offence, and prior disclosure.
3. The relative weight of those factors had changed since Re EC, because successive reforms had relaxed the cloak of confidentiality surrounding care proceedings. The court was required to consider the relevant Convention rights, particularly Articles 6 and 8, consistently with Lewisham LBC v D (Local Authority: Disclosure of DNA Samples to Police), [2011] 1 FLR 895.
4. The failure to warn the father that an admission might later be disclosed to the police did not breach his Article 6 right to a fair trial in the care proceedings. The encouragement to tell the truth was directed to securing a fair determination of the care proceedings and the absence of a warning was relevant only as one factor in the balancing exercise.
5. The court was not required to decide whether a prosecution should be brought or whether material would be admissible in criminal proceedings. Disclosure enabled the police and CPS to perform their respective functions. Section 98(2) of the Children Act 1989 prevented an admission made in the family proceedings from being admissible in criminal proceedings, except for perjury, but did not prevent the police from using the information to shape their investigation.
6. A staged approach was appropriate. The police and CPS could receive the judgments, but could not disclose them or information contained in them to the parents or any other person without further permission. The court retained control over subsequent applications for wider disclosure, further documents or information.

First-instance decision. No prior appellate decision in the present proceedings was stated.