Nottinghamshire County Council v The Mother & Ors (Police Bail)

Police bail conditions restricting contact with children must be necessary for a statutory bail purpose. Where the sole concern is the risk of an offence against a child, the Family Court may be better placed than the police to assess that risk in the context of welfare proceedings, particularly after a fact-finding hearing and with expert Guardian evidence. The police retain responsibility for setting bail conditions and the Family Court cannot dictate or order the conditions they impose. State agencies should nevertheless coordinate their decisions so that bail conditions do not unnecessarily frustrate proportionate welfare arrangements or waste public resources.

The proceedings concerned the care and future contact arrangements for a four-year-old child, X. HD, a former special guardian and foster carer, had been charged with offences arising from injuries suffered by another child in his care. Police bail conditions prohibited HD from having unsupervised contact with children.

The care proceedings judge, HHJ Reece, was considering a staged rehabilitation plan involving unsupervised contact between HD and X. The case was referred to the Family Presiding Judge for the Midlands because the police had not adequately addressed whether the bail conditions could accommodate any Family Court order. The central issue was the proper relationship between the police bail conditions and the Family Court’s assessment of risk and welfare.

1. Statutory framework. A defendant has a general right to bail under Bail Act 1976, section 4, subject to the exceptions in Schedule 1. Bail conditions may be imposed, or varied, only where the statutory necessity requirement is met. The relevant purposes included preventing an offence while on bail.
2. Division of responsibility. The Family Court could not dictate to, or order, the police what bail conditions to impose. The police had to exercise their own statutory responsibilities. An application to vary police-imposed post-charge bail conditions would be dealt with through the criminal justice process.
3. Relative expertise. The only actual ground relied on for HD’s conditions was the risk of an offence, namely harm to X. In that context HHJ Reece was better placed than the police to assess the risk and whether unsupervised contact could be safely managed. He had conducted a five-day fact-finding hearing, heard HD’s oral evidence, and had the benefit of recommendations from an experienced Cafcass Guardian. The Family Court’s task was to assess and balance risk to the child in a timely and proportionate way, taking account of its duty under section 1 of the Children Act 1989.
4. Co-operation. State agencies should work together in the interests of children and the justice system. Bail conditions should therefore be considered with proper regard to the Family Court’s role, while preserving the police’s independent responsibility. The police indicated during the hearing that they would agree to vary the conditions if the Family Court considered that HHJ Reece should be able to order unsupervised contact.
5. The matter was confined to the interface between bail and contact. The wider welfare decisions remained for HHJ Reece.

not stated in the judgment.