Re P (Children) (Disclosure)

The Court of Appeal dismissed the father's appeal against the judge's refusal to grant a prospective, blanket immunity from disclosure of any statements or admissions he might make in private law children proceedings to the police or Crown Prosecution Service. The court held that the Family Court should not pre-emptively decide questions of onward disclosure in respect of hypothetical incriminating material and that it cannot by judicial fiat create the broader immunity the father sought, which would exceed the limited statutory protection Parliament has created for public law proceedings in section 98 of the Children Act 1989. The court emphasised the continuing operation of the privilege against self-incrimination in private law proceedings, the availability of procedural safeguards in any later criminal process (including PACE and the Criminal Justice Act 2003 and the court's powers under section 78 of PACE), and the established multi-factor Re C (A Minor) disclosure balancing exercise for permitting disclosure to third parties.

Background and posture:

• The father had been the subject of a prior fact-finding judgment by Hayden J (including a finding of rape): [2021] EWFC 4. The parents were in unresolved private law proceedings about contact and parental responsibility, and the mother applied for orders including removal of parental responsibility and for permission to disclose family court materials to the police.
• Before the substantive final hearing the father applied for a prospective order that any statements or admissions he might make in the family proceedings would not be disclosed to the police or Crown Prosecution Service.

Nature of the application:

• The father sought a blanket, pre-emptive protection against onward disclosure to the prosecuting authorities to remove what he described as an unfair binary choice between full engagement (which might incriminate him) and silence, and to facilitate frankness in the family process.

Issues framed by the court:

(i) Whether a Family Court can and should make a pre-emptive, wide-ranging order preventing disclosure of any future incriminating statements by a private law litigant to the police or prosecutors; (ii) the relationship between the common law privilege against self-incrimination, Article 6 ECHR, and the limited statutory regime in section 98 Children Act 1989; and (iii) the appropriate approach to disclosure from family proceedings to third parties (applying the Re C factors).

Court's reasoning and resolution:

• The judge at first instance had refused the application as premature and inappropriate to grant the wide protection sought; the Court of Appeal agreed. It was impermissible to decide in advance the admissibility or onward disclosure of unspecified, hypothetical material without knowing its content, because that would fetter the court's later evaluative discretion and substitute a blanket priority for an assessment under the Re C factors.
• The court underlined that Parliament alone may abrogate or alter the privilege against self-incrimination; section 98 CA 1989 exemplifies such a statutory measure in public law cases but provides more limited protection than the blanket immunity sought here. A private law litigant cannot, by Article 6 argument, claim a right to self-incriminate with absolute protection from subsequent criminal investigation or use. The Family Court cannot determine the admissibility of evidence in criminal proceedings and so cannot create an equivalent to section 98's limited protection in private law cases.
• Practical safeguards exist in the criminal process (statutory evidence rules, PACE sections on confessions and exclusionary discretion under section 78) to protect the fairness of any prosecution; disclosure decisions from family courts should be made by applying the Re C balancing exercise and related authorities.

Conclusion:

The appeal was dismissed. The court confirmed that a pre-emptive, blanket order of the sort sought by the father was both premature and legally inappropriate.

The appeal is dismissed. The Court of Appeal held that the Family Court should not make a pre-emptive, blanket order preventing disclosure to prosecuting authorities of any statements or admissions a private law litigant might make. Such an order would be premature in the absence of identified material, would improperly fetter the court's later evaluative discretion, and would attempt to create wider protection than Parliament has provided by section 98 of the Children Act 1989. The Family Court cannot prevent the prosecuting court from determining admissibility in criminal proceedings and existing safeguards in criminal procedure and the established Re C disclosure balancing exercise provide appropriate protections.

Appeal to the Court of Appeal from the High Court (Hayden J) following a fact-finding judgment ([2021] EWFC 4) and the High Court refusal of the father's provisional disclosure-relief application ([2021] EWHC 3133 (Fam)). Permission to appeal was granted and the Director of Public Prosecutions was invited to intervene; the Court of Appeal handed down judgment dismissing the appeal: [2022] EWCA Civ 495.