Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure)

Police disclosure into family proceedings must be timely, complete and assessed against the family court’s wider evidential needs. A police disclosure team must be able to identify the totality of material held across relevant information systems. The local authority, as applicant in public law proceedings, bears the primary responsibility for checking that disclosure is complete, identifying anomalies and assisting the court fairly, including with material that may weaken its case. Parties must cooperate and comply with disclosure orders. The national disclosure Protocol should be followed, while courts and practitioners should use focused liaison, schedules of material, continuing updates and early applications concerning relevance or public interest immunity.

These care proceedings arose after the death of an infant, X, from inflicted brain and spinal injuries while in the joint care of her parents. The proceedings concerning X’s surviving sister, Z, included a fact-finding hearing at which the court had to determine which parent had injured X. Lancashire Constabulary disclosed substantial material late, including approximately 900 further pages during the hearing.

After determining the factual issues in a separate judgment, the court considered what had gone wrong in the police disclosure process and how similar failures might be avoided. The central issues were the respective disclosure responsibilities of the police, local authority and other parties, and the relationship between court orders, the Family Procedure Rules and the national and local disclosure Protocols.

1. Inadequate police disclosure. The process was manifestly inadequate. Lancashire Constabulary had not identified before the hearing that further potentially relevant material existed. The principal structural cause was that the disclosure team could access Connect but not HOLMES2, the system containing material from the serious investigation. This prevented the team from seeing the totality of the police material.
2. Disclosure framework. Disclosure in family proceedings is governed by Part 21 of the Family Procedure Rules 2010, the national Protocol and, where appropriate, court orders. Rule 21.2 permits disclosure orders against non-parties where necessary for the fair disposal of proceedings or to save costs. The police may seek to withhold inspection on public-interest grounds, but must comply with orders unless relief is obtained. The court also considered the common-law position reflected in the Civil Procedure Rules 1998.
3. Local authority’s duty. In public law care proceedings, the local authority must act fairly, independently and objectively. It must place relevant evidence before the court, including evidence which may modify or cast doubt on its case. It bears the primary responsibility for ensuring that police disclosure is complete, bringing anomalies to the court’s attention promptly and taking the lead in case preparation. The other parties remain under duties to cooperate and comply with directions.
4. Practical procedure. The national Protocol should continue to be followed pending any revised guidance. Police forces should check that their disclosure teams can access all relevant data systems. Local authority lawyers should make the same checks. The court endorsed early and continuing liaison, schedules identifying all police-held material, updates before fact-finding hearings, prompt applications on disputed relevance or public interest immunity, and a recorded meeting between the local authority and police disclosure team shortly before a directions or review hearing.
5. Scope of guidance. The suggestions were practical measures capable of immediate implementation and were not formal guidance. The judgment was intended to build on the suggestions in London Borough of Southwark v US and Others [2017] EWHC 3707 (Fam). The court’s decision was stated in those terms.

First instance decision following a fact-finding hearing in care proceedings. The judgment on police disclosure was delivered separately from the judgment determining the factual issues concerning the child’s injuries and death.