G v G & Anor

A court may, in exceptional circumstances, impose a short delay on disclosure of a report in family proceedings where immediate disclosure could prejudice an important criminal investigation. The court must distinguish temporary delay from ultimate non-disclosure. It must balance any impairment of the parties’ ability to prepare for a fair hearing against the interests of justice and the need to protect an effective investigation. A delay may be justified where it is limited, preserves eventual full disclosure, and does not significantly impair the parties’ trial rights. The court should not facilitate entrapment by withholding material until a person arrives within the jurisdiction for the purpose of arrest.

The proceedings concerned an application by Dorset Police to delay filing and service of a completed CAFCASS report in proceedings brought by a father for the summary return of his children to New Zealand under the Hague Convention on the Civil Aspects of International Child Abduction and the Child Abduction and Custody Act 1985. The report referred to a police investigation into allegations made by the parties’ daughter concerning sexual abuse by her father.

The police sought a temporary restriction so that New Zealand police could interview, and potentially arrest, the father without advance warning. The central issue was whether disclosure should be delayed briefly, and if so until when.

1. Application granted in part. The court ordered that CAFCASS must not file, serve or disclose the report before 3 pm on 11 May 2018. The order imposed a short delay only; it did not authorise ultimate non-disclosure.
2. The court distinguished the authorities concerning exceptional permission for facts or documents not to be disclosed. The present application concerned a temporary brake on disclosure of a report which would later be disclosed in full before the substantive hearing.
3. The relevant exercise required a balance between any impairment of the parents’ fair-trial rights and preparation for the hearing, and the interests of justice and of the child in allowing an effective police investigation in England and New Zealand. The limited duration of the proposed delay, the preservation of eventual full disclosure, and the fact that the report would still be available more than ten days before the listed hearing meant that the parents’ rights and preparation would not be significantly impaired.
4. The court refused to delay disclosure until after the father had travelled to England. Because the existing order positively required him to attend the hearing, withholding the report until his arrival, with knowledge that the purpose was to facilitate his arrest, would have implicated the court in entrapment.
5. The judge observed that the criminal investigation was likely to affect the timetable and effectiveness of the proposed Hague Convention hearing, although its ultimate outcome was unknown.