M (Children)

Disclosure of material from private family proceedings to the police is governed by the flexible balancing exercise in Re C. Disclosure should be ordered only where the relevant factors establish that it is necessary and proportionate. The police need not first demonstrate a real prospect of a specific criminal charge or exhaust other investigative routes.

The criminal right to silence does not apply in the Family Court. The relevant protection is the privilege against self-incrimination, subject in care proceedings to section 98 of the Children Act 1989. Potentially incriminating content is an important consideration, but does not create an absolute bar to disclosure. A “statement” protected by section 98(2) may include a litigation position statement as well as a witness statement.

During care proceedings concerning two young children, the police sought disclosure of the parents’ witness statements and their lawyers’ position statements. The parents had returned from Syria and were under investigation for possible terrorism offences. Keehan J granted the application after balancing the ten factors identified in Re C (A Minor) (Care Proceedings: Disclosure).

Both parents appealed. They argued that the police had shown no prima facie evidential basis for a charge, that disclosure infringed the right to silence and privilege against self-incrimination, and that position statements should receive distinct protection. They also proposed a new proportionality framework derived from Bank Mellat v HM Treasury (2). The central issue was whether the established Re C approach remained applicable and had been correctly applied.

1. Appeal dismissed unanimously. McFarlane P, with Simon and Nicola Davies LJJ agreeing, held that Keehan J had correctly applied the established disclosure principles and reached a proportionate decision.

2. The right to silence concerns whether a person must answer questions from the police. It did not apply within the Family Court. The relevant civil protection was the privilege against self-incrimination. The parents’ documents contained no potentially incriminating material, and the judge was entitled to give that fact particular weight. Even where material is potentially incriminating, it creates no absolute prohibition on disclosure. The court must instead consider the Re C factors carefully and decide whether disclosure is necessary and proportionate.

3. Re C (A Minor) (Care Proceedings: Disclosure) remained fit for purpose. Its ten non-exhaustive factors provide a flexible means of balancing confidentiality, frankness, fairness, children’s interests, the administration of justice and the investigation of serious crime. There was no requirement that the police first establish a real prospect of a specific charge or exhaust alternative investigative routes. The proposed reformulation derived from Bank Mellat v HM Treasury (2) was therefore not adopted.

4. The factual context supported a significant index of suspicion and gave substantial weight to the investigation and protection of the public. The court could also consider the Home Secretary’s conclusion that the terrorism-related conditions for a temporary exclusion order under section 2 of the Counter-Terrorism and Security Act 2015 were met. Disclosure also served the children’s interests by assisting the investigation and avoiding delay in the care proceedings.

5. Section 98(2) of the Children Act 1989 is not confined to witness statements. Its reference to a “statement or admission made in such proceedings” may encompass a position statement. Relevance remains fact-sensitive, but there was no legal distinction justifying refusal of disclosure here.

6. The President’s Guidance on Radicalisation Cases was practice guidance only. It could not alter the governing statutes or authorities, and the judge had not relied on it in a manner producing error.

1. Court of Appeal (Civil Division): The parents’ appeal was dismissed unanimously. The court upheld the disclosure order: [2019] EWCA Civ 1364.
2. Family Court at Wolverhampton: Keehan J ordered the local authority to disclose the parents’ witness statements and position statements to the police. No neutral citation for that decision is stated.