A (Children), Re

Disclosure of documents from care proceedings to the police is governed by the Re EC checklist [1997] 2 WLR 322, rather than a separate threshold or automatic bar. The factors have no fixed order and their weight varies with the case. They include child welfare, confidentiality, frankness, the administration of justice, the prosecution of serious crime, relevance and gravity, inter-agency co-operation, the protection in section 98(2) of the Children Act 1989, and prior disclosure.

Confidentiality extends beyond protecting a child’s identity. Section 98(2) prevents a statement or admission being used as evidence in a criminal trial, but does not prevent disclosure for investigative purposes. Appellate interference with a trial judge’s case-management decision is exceptional.

The father appealed against an order made by Her Honour Judge Redgrave in the Central Family Court on 20 December 2019. The order, made on the application of the Metropolitan Police Service, directed disclosure of documents filed in care proceedings concerning J, who had suffered catastrophic brain injuries while in the care of his parents.

Disclosure of extensive medical and other material had been agreed. The dispute concerned the parents’ narrative statements, a Public Law Outline case analysis and the Guardian’s note of the parents’ accounts. The father accepted that the documents were relevant to the police investigation but argued that the judge had misunderstood confidentiality, the public-interest considerations and the protection against self-incrimination. The central issue was whether the judge had erred in law in ordering disclosure.

1. Appeal dismissed. The judge had not made any of the alleged errors of law. The Court of Appeal was also reluctant to interfere with a disclosure decision made by a judge familiar with the underlying fact-finding trial and reached at a case-management hearing.
2. Governing approach. The applicable framework was the ten-factor Re EC checklist [1997] 2 WLR 322. Its factors were not ranked in advance and their weight varied from case to case. The approach had recently been reaffirmed in Re M (Children) [2019] EWCA Civ 1364, which had rejected the proposed replacement of the checklist by a test based on Bank Mellat proportionality principles.
3. Confidentiality. Section 97(2) of the Children Act 1989 protects a child’s identity, while section 12 of the Administration of Justice Act 1960 reflects the wider confidentiality attaching to proceedings in private. The confidentiality factor in Re EC was therefore not confined to identity. An ex tempore judgment had to be read as a whole. On that reading, the judge had considered the broader interests engaged by confidentiality.
4. Public interest and relevance. The judge had not treated disclosure from police investigations to the Family Court as identical to disclosure in the opposite direction. She had applied the relevant Re EC factors, including the administration of justice, co-operation between agencies, the gravity of the alleged offence and the relevance of the documents.
5. Self-incrimination. Section 98(2) of the Children Act 1989 prevents a statement or admission made in care proceedings being used as evidence against its maker or spouse in criminal proceedings. It does not create a complete bar to disclosure for investigative purposes. The failure to give a section 98 warning was not determinative: Re X and Y (Disclosure of Judgment to Police) [2015] 1 FLR 1218. The documents could not be used as Crown Court evidence, but could inform decisions about further interviews or charges.
6. Application. J had suffered devastating injuries, the documents were accepted to be relevant, and extensive disclosure had already occurred, including the detailed fact-finding judgment and medical evidence. The remaining material contained inconsistent parental accounts. In those circumstances, little confidentiality remained to be lost and proper application of the checklist made disclosure inevitable.

• Court of Appeal (Civil Division): Appeal dismissed.
• Central Family Court: On 20 December 2019, Her Honour Judge Redgrave ordered disclosure of documents from the care proceedings to the Metropolitan Police Service.