Reading Borough Council v Miss Angela D & Ors [2006] EWHC 1465 (Fam)

Case No RG05C01351[2006] EWHC 1465 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 20 th June 2006
Before
THE HON. MR JUSTICE SUMNER
Between
Reading Borough CouncilApplicant
Miss Hildyard QC (instructed by the joint legal team of Reading BC) for ApplicantMiss Baxter (of Deborah Baxter & Co.) for First RespondentMr Ian Robertson (of Griffiths Robertson Solicitors) for Second RespondentMr Samuels (instructed by Rowberry Morris & Co.) for GuardianMiss Watson for IntervenerHearing Hearing dates: 21 & 22 February 2006 and 19 May 2006
Judgment
[1]This is an application by the Intervener, the Chief Constable of Thames Valley Police (“the Police”) of 14 February 2006. It relates to documents which were handed to one of his officers, DC Johnson, by a social worker H employed by the Applicant local authority, I, on 9 December 2005. The Police ask about the use they can make of those documents. They seek leave to use the documents if so required.[2]The application raises questions on the nature and extent of the changes introduced by the Family Proceedings (Amendment No 4) Rules 2005 (“the 2005 Rules”) which came into force on 31 October 2005. By the final hearing on 19 May 2006 the apparent differences between the parties had been much reduced. I have also been asked to give some guidance. On this there has been broad agreement.

Background

[3]These applications arise out of care proceedings started by the local authority on 8 August 2004. The Respondents were the mother, A, and the father, B. They have a girl and 2 boys, C, D and E who are the subject of the proceedings. E was born in the summer of 2005.[4]The history of the relationship involved violence and aggression. The mother said the father’s violence continued.[5]In July 2005 when E was 4 weeks old the mother took him to hospital. He was found to have multiple rib fractures incurred at different times, an injury to the liver and spleen with bruising over both, a left sided skull fracture, and severe brain injury.[6]The parents separated a week later. The 2 older children were placed with their maternal grandmother. E was placed with foster carers following his discharge from hospital, where he remains. Care proceedings were started in respect of all 3 children.[7]The father was interviewed by the Police on 3 occasions. On the final occasion in November 2005 he admitted he had twice used violence on E. On 24 November 2005 he was charged with 2 counts of causing E grievous bodily harm with intent. The charges were later changed to child cruelty. He has been remanded in custody.[8]On 8 December 2005 there was a meeting of legal professionals attended by solicitors for each of the parents and the local authority. An unsigned statement from the father was distributed between the parties.[9]There had been contact between the Police and the local authority about the information which the local authority had obtained. On 9 December 2005 five documents were delivered to DC Johnson by Miss H, a social worker. They were as follows – i) A medical report from Mr Richards, a consultant neurosurgeon, of 5 December 2005. He concluded that E’s injuries were most likely to be non-accidental. ii) A report from Dr Johnson, a consultant paediatric radiologist, of 9 December 2005. He considered E’s rib fractures were non-accidental and that the liver injury had been caused by blunt abdominal trauma. iii) An undated and unsigned statement from the mother prepared for the care proceedings. In that she said that the father was violent. He had sole care of E on the evening of 15 July. She blamed him for E’s injuries. This was signed and served on 14 December 2005. iv) A signed statement of the father dated 23 October 2005 prepared again for the care proceedings. He accepted that there had been violence between himself and the mother. He denied injuring E. v) An undated and unsigned statement of the father which had been disclosed on 8 December 2005. In it he withdrew his confession of responsibility for E’s injuries. He said the confession was made as a result of pressure from the mother and the maternal grandmother.[10]On 16 January 2005 the local authority wrote to Mr Lemon, the Head of Legal Services with the Police. The local authority considered that if the Police wished to disclose any of the documents filed in the care proceedings, they should make an application to court.[11]By its response of the same day the Police stated that they would seek guidance from the court about what DC Johnson could do with the documents. This they very properly did. They attended before me on a directions hearing on 10 February 2006 and issued an application 4 days later seeking permission to use the 5 documents listed above.[12]It was apparent from skeleton arguments of the parties that there was a difference of view about the 2005 Rules. I therefore heard submissions on 21 and 22 February and 19 May. This has not delayed the hearing of the care proceedings.

Representation

[13]Miss Watson appeared on behalf of the Police, Miss Hildyard QC for the local authority, Miss Baxter for the mother, and Mr Robertson for the father. The Guardian was represented by Mr Samuels.

The recent history of disclosure of information and documents in children cases

[14]In order to understand the changes made by the 2005 Rules it is helpful to see it in its historic setting. It starts with a statutory exception in the Administration of Justice Act 1960 to the general rule that it is a contempt to publish information relating to proceedings before a court sitting in private.[15]That exception is subject to provision in the Children Act 1989 banning the publication of material likely to identify a child involved in family proceedings. The Act also sought to protect persons who could be compelled to give evidence in cases involving children even if the evidence incriminated them.[16]That was followed by the Family Proceedings Rules 1991. They broadened the statutory exception to persons closely involved in the proceedings. These changes were against a background where the courts were actively encouraging greater disclosure between agencies involved in child protection. I now turn to the details of those developments.

The Statutes

[17]By section 12(1)(a) of the Administration of

Justice Act 1960:

“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say – (a) where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor. (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.”
S.12(4) has now been amended by the Children Act 2004 to provide that it is no longer contempt to publish information authorised by Rules of Court.[18]Under section 97(2) of the Children Act 1989: “No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify–(a) any child as being involved in any proceedings before (a Family Court) in which any power under (the 1989) Act may be exercised by the court with respect to that or any other child, or(b) an address or school as being that of a child involved in any such proceedings.” (The words in italics are added by s.62(1) of the Children Act 2004).[19]In relation to evidence under Part IV or V of the Children Act 1989, by section 98 it is provided that:
“…..no person shall be excused from – a) giving evidence on any matters; or b) answering any question put to him in the course of his giving evidence on the ground that doing so might incriminate him or his spouse of an offence. 2) a statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury.”

The Rules

[20]This was followed by Rule 4.23 of the Family Proceedings Rules 1991. It provided, subject to minor exceptions, that:
“No document, other than a record of an order, held by the court and relating to proceedings (under the Children Act) shall be disclosed, other than to – a) a party, b) the legal representative of a party, c) the children’s Guardian, d) the Legal Aid Board, or e) a welfare officer or Children and Family Reporter, f) an expert whose instructions by a party has been authorised by the court, without leave of the judge or District Judge.”

The effect of the Statutes and Rules before the 2005 Rules

[21]For the purposes of this hearing, these provisions can be summarised as follows: i) It is a contempt of court to publish any information relating to private proceedings concerning children except for a court order unless that publication is expressly permitted. ii) It is a criminal offence to publish any material likely to identify a child involved in such proceedings, their home, or school to the public at large. iii) In private proceedings no one is excused from answering questions on the grounds that it might incriminate him or his spouse. Any admission is not however evidence against him or his spouse for any offence except perjury. iv) No document held by the court in such proceedings is to be disclosed except to a limited group of people closely connected to the proceedings (but not the police) without the permission of the court save for a record of an order. The 2005 Rules[22]The Rules apply to proceedings held in private in precisely the same terms as provided by section 12(1)(a) of the 1960 Act, (see para. 11). Rule 4.23 of the 1991 Rules is repealed. Under sub-rule 2 of 10.20A, the wording of section 12(1)(a), “information relating to the proceedings” is reproduced.[23]It is in these terms – “For the purpose of the law relating to contempt of court, information relating to the proceedings (whether or not contained in a document filed with the court) may be communicated –(a) where the court gives permission,(b) subject to any direction of the court, in accordance with paragraphs (3) or (4) of this rule or,(c) where communication is to – (i) a party, (ii) the legal representative of a party, (iii) a professional legal advisor, (vi) an officer of the service or a Welsh Family Proceedings officer, (v) the welfare officer, (vi) the legal service commission, (vii) an expert whose instruction by a party has been authorised by the court, or (viii) a professional acting in furtherance of the protection of children.” (i) a party, (ii) the legal representative of a party, (iii) a professional legal advisor, (vi) an officer of the service or a Welsh Family Proceedings officer, (v) the welfare officer, (vi) the legal service commission, (vii) an expert whose instruction by a party has been authorised by the court, or (viii) a professional acting in furtherance of the protection of children.”[24]Under sub-rule 5 the additional words “professional acting in furtherance of the protection of children” are defined. It “includes – i) An officer of a local authority exercising child protection functions, ii) A police officer who is – a) Exercising powers under section 46 of the Act of 1989, or b) Serving in a child protection unit or a paedophile unit of a police force; iii) Any professional person attending a child protection conference or review in relation to a child who is the subject of the proceedings to which the information relates, or iv) An officer of the National Society for the Prevention of Cruelty to Children.”[25]Finally under sub-rule 3 there is a grid divided into 4 columns. The sub-rule provides – “A person specified in the first column of the following table may communicate to a person listed in the second column such information as is specified in the third column for the purpose or purposes specified in the fourth column.”[26]It is not necessary for me to reproduce that table other than to note the following. The first 8 instances relate to a party (and in 2 instances a legal representative) being able to give “any information relating to the proceedings” to a member of specified persons or body for a series of different purposes. There is a further category permitting legal representatives to communicate with an accreditation body.[27]It then sets out the more limited information which a party can communicate to his elected representative, the General Medical Council, a police officer, and a member of the Crown Prosecution Service. That limited information is confined to “the text or summary of the whole or part of a judgment given in the proceedings”.[28]Importantly in relation to a police officer, it has to be “for the purpose of a criminal investigation”. A criminal investigation is again defined. It “means an investigation conducted by police officers with a view to it being ascertained – i) Whether a person should be charged with an offence, or ii) Whether a person charged with an offence is guilty of it”. Summary and effect of

The 2005 Rules

[29]The check on whether information from private family proceedings can be communicated to other persons remains the law of contempt. For the purposes of this application there are the following changes in the 2005 Rules. Under sub-rule 2 to rule 10.20A of the 2005 Rules, the exception formerly in the 1991 Rules about information which can be given to a limited group of people is widened. It now includes the words in brackets “whether or not contained in a document filed with the court”.[30]An extra group is also included in the list of those to whom information may be communicated, namely a professional acting in furtherance of the protection of children. This includes police officers, but they have either to be exercising their powers under section 46 of the Children Act (removal and accommodation of children by police officers in cases of emergency) or “serving in a child protection unit or a paedophile unit of a police force”.[31]Under sub-rule 3 of the 2005 Rules the information that can be disclosed to the police other than an officer serving in a child protection unit is also changed. The text or summary of the whole or part of a judgment given in the proceedings can be disclosed. But it has to be “for the purpose of a criminal investigation”.[32]The 2005 Rules do not seek to change the existing case law on the circumstance when court documents should or should not be disclosed to which I shall come. It widens the scope of the group to whom information in those documents can be given by including the police in their child protection role. It also allows judgments to be disclosed to certain specified groups, including the Police if it is for a criminal investigation.

How the issues arise

[33]In this instance the situation is potentially complicated by the fact that DC Johnson is both a member of a child protection unit and is also involved with the criminal investigation relating to the father. It is now agreed by all the parties save the Guardian that the action of Miss H in handing over the documents in December 2005 to DC Johnson was not a breach of the Rules and was not in contempt. The differences that have arisen between the parties are the legality of handing over the documents and the purposes for which he can make use of those documents.[34]The use is agreed by the local authority, the mother and the father. The Police argue for a wider interpretation. The Guardian supports this if, contrary to his argument, the handing over of the documents was lawful. All ask me to provide guidance to assist in the future.

The essential conflict

[35]Questions involving disclosure to the police of information and documents connected with private family cases are of great importance. Difficulties arise from the conflict between 2 important principles.[36]The first is the need for confidentiality in children cases. This is based on the needs of a child to have no publicity on what has been described as “truly domestic affairs”. It is also based on the need for frankness from an individual in matters relating to children and a requirement that confidences given will be maintained (for amplification of this see the judgment of Munby J. in Re: X (Disclosure of Information) (2001) 2 FLR 440 at paragraphs 23 and 24).[37]The second no less important principle is the need to investigate and where warranted to prosecute all those who are or may be criminally involved with children. It is this conflict which has led to the differences between the parties and on which I am asked to rule.

The issues

[38]I start with the argument of Miss Watson of counsel for the police who adopted the skeleton argument of Miss Bradley who appeared for the Police at the first hearing. Miss Watson made the following submissions – i) The handing over of the documents to DC Johnson was lawful. It is expressly permitted under the 2005 Rules and is therefore not a contempt of court. ii) DC Johnson is entitled to use the information in the documents for the protection of children. iii) He can also use that information for the purposes of any criminal investigation. iv) Any legal privilege attaching to the father’s unsigned proof has been totally waived by him in disclosing it at the meeting of legal professionals. v) Whether all or any of the information or the documents themselves can be used in any criminal trial will be for the trial judge at that hearing to determine. vi) The documents handed over can be used in the criminal trial without further leave of this court. If that is wrong then leave for their disclosure is sought.[39]Miss Watson accepted that, if DC Johnson’s role had been limited to child protection and another officer was undertaking the criminal investigation, that other officer would have to seek permission of the court to use the documents in any prosecution. However DC Johnson had a dual role which I am told is now common practice. Therefore the need to seek permission did not arise.[40]Miss Hildyard QC for the local authority supported by Ms Baxter for the mother and Mr Robertson for the father accepts i), ii) and iii) above but not iv), v) and vi). Thus they agree that the handing over of the documents was lawful. The fact that DC Johnson had a dual role does not alter the position. He can use the information in the documents for the purpose of child protection.[41]Part of child protection is a criminal investigation of any person who may have committed an offence relating to the child. He can therefore use the information in the course of those duties. What he cannot do is to use the documents lodged with a family court without that court’s leave.[42]There is a further exception which relates to the father’s unsigned document. That had legal professional privilege. It was waived for the purpose of handing out at the meeting. It was not a complete waiver but only for the purpose of that meeting. That partial waiver continues.[43]Mr Samuels for the Guardian seeks a more restrictive interpretation. He points to the words “a professional acting in furtherance of the protection of children” in rule 10.20A (2). That governs the right to disclosure of information.[44]It is to be distinguished from the provisions of sub-rule (3). There it relates to a judgment which can be communicated to a police officer “for the purpose of a criminal investigation”.[45]Given this clear distinction, the information in the 5 documents can only be disclosed to DC Johnson for the purpose of child protection. He cannot use it in his other role, that of a criminal investigation.

The case law

[46]To understand the 2005 Rules it is helpful to consider further the law as it then stood on disclosure. It involves a consideration of the documents covered by the 1991 Rules, the extent to which confidentiality arises in relation to those documents not so covered, and the relevant points which the court has to consider when deciding whether to order disclosure. The essential points can I believe be summarised as follows.[47]The effect of the 1991 Rules was to prevent any unauthorised use of documents filed with the court except to a limited category of persons closely connected with the case. Leave of the court was required if they were to be used.[48]The Rule did not cover documents prepared for the court but not filed nor information to be put in future reports for the court. It also did not cover other documents such as local authority case notes, working notes, information gathered by a CAFCASS Reporter, or a video.[49]Those documents not so covered were or were likely to be confidential and covered by public interest immunity. As such the information in those documents is subject to court rules. It cannot be disclosed save to those involved in the investigative process, see Re G (Social Worker: Disclosure) (1996) 1 FLR 276, Re W (Disclosure to Police) (1998) 2 FLR 135, and Re M (Disclosure: Children and a Family Reporter) (2002) 2 FLR 893.[50]Thus once a document has been filed with the court, the use of the document itself is controlled by the court. But the information in that document as well as information in case notes and other preparatory documents of a local authority or CAFCASS is not so restricted. However it remains confidential and subject to public interest immunity. That does not prevent the sharing of the information with other agencies involved in child protection work. But the sharing of information does not lose the confidentiality attaching to the information or the documents.

Interdisciplinary communication

[51]The case of Re G (Social Worker: Disclosure)(1996) 1 FLR 277 drew attention to the need for interdisciplinary and intra-agency work as an essential part of child protection. “There has therefore to be free exchange of information between the agencies in order to facilitate that work and the protection of children”, (Butler-Sloss LJ, p.141).[52]In that case the court held that documents not held by the court did not come within the scope of the 1991 Rules. Disclosure for instance of the working papers of a local authority were covered by confidentiality and public interest immunity. This did not prevent the Police being able to see that confidential material in the best interests of children.[53]In Re M (Disclosure: Children and Family Reporter) (2002) 2 FLR 893 Thorpe LJ pointed out that similar considerations applied to private law family cases. He emphasised “the need for communication between the family justice system in private law proceedings and the local authority in discharging its statutory functions for the protection and care of children at risk of significant harm”.

Principles where leave of the court is required to use documents

[54]Where leave is sought from the court to use documents either on the court file or by their nature confidential, the principles have been set down in the judgment of Swinton Thomas LJ in Re: C (A Minor) (Care Proceedings: Disclosure) (1997) 2 WLR 322. He set the framework by referring to the judgment of Sir Thomas Bingham MR as he then was in Re: L (Police Investigation: Privilege) (1995) 1 FLR 999 at 1019 where he said – “The authorities show that many factors are potentially relevant, depending on the facts, to the exercise of the discretion. Where material has come into existence in the course of proceedings to determine, whether in wardship or under the Children Act, how the welfare of a child will be best served, it is plain that consideration of the welfare of a child will be a major factor in the exercise of the discretion: if disclosure will promote the welfare of the child, it will readily be ordered; if disclosure will not affect the welfare of the child, other considerations are likely to carry the day one way or the other; if disclosure will prejudice the welfare of the child, disclosure may nevertheless be ordered if there are potent arguments for disclosure, but the court will be much more reluctant to make the order. It is plain that the public interest in the fair administration of justice, and the right of the criminal defendant to defend himself, are accepted as potent reasons for disclosure. If, on the other hand, it could be shown that disclosure would for some reason be unfair or oppressive to a party to the wardship or Children Act proceedings, that would weigh against an order for disclosure.”[55]He went on to approve a statement of Booth J in In Re S (Minors)(Wardship: Disclosure of Material) (1988) 1 FLR at p.5 where she said - “The likely outcome and its effects upon a ward of granting an application such as the police now make must be considered in each and every case. But when balanced against the competing public interest which requires the court to protect society from the perpetration of crime it could only be in exceptional circumstances that interests of the individual ward should prevail. In this case, although the results may be far-reaching and unpleasant for these young and damaged children, their interests are secondary to that greater public need. I am satisfied that on the facts this application is wholly justified and that the police should have the leave they seek in respect of the medical records and video recordings now in the possession of the Great Ormond Street Hospital…..”[56]Swinton Thomas LJ stated at p.330 – “In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case.(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.(2) The welfare and interests of other children generally.(3) The maintenance of confidentiality in children cases.(4) The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of section 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.(5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.(6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.(7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.(8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.(9) In a case to which section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incrimination statement and any danger of oppression would also be relevant considerations.(10) Any other material disclosure which has already taken place.” (1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor. (2) The welfare and interests of other children generally. (3) The maintenance of confidentiality in children cases. (4) The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of section 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given. (5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice. (6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor. (7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order. (8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children. (9) In a case to which section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incrimination statement and any danger of oppression would also be relevant considerations. (10) Any other material disclosure which has already taken place.”[57]More recently the judgment of Wall J as he then was in Re AB (Care Proceedings: Disclosure of Medical Evidence to Police) (2003) 1 FLR 579, highlighted the discretionary nature of the proceedings under the balancing exercise set out in Re C. He also importantly raised the question of having a protocol between the Crown Prosecution Service and the family justice system to cover mutual disclosure of information. I would support that.[58]He identified a particular group of cases. It was those where there has been acknowledgment of harm done by a parent, and a prospect of rehabilitation dependent on the gravity of the harm. In those cases the court might refuse disclosure to the police. He saw s.98 as an important factor and a positive incentive to frankness.[59]Because of the ready agreement in this instance that there should be an order for disclosure, I have not heard argument on that issue. I have not had to go through the necessary balancing exercise. But bearing in mind that it is only in exceptional circumstances that disclosure should not be ordered, I would have reached the same conclusion.

The scope of s.12 of the Administration of Justice Act 1960

[60]It has also not been necessary for me to consider the scope of the 1960 Act. No points have arisen. But for the sake of completeness when considering disclosure, I refer to the judgment of Munby J in Re: B (A Child) (Disclosure) (2004) 2 FLR 142. It was this judgment which led to the 2005 Rules.[61]At para. 82 he summarised matters which were and which were not within the scope of s.12. Subject to the 2005 Rules it remains a valuable guide.

Conclusions

[62]There is a ban on the publication of information under the 1960 Act relating to private family proceedings before the court save when it is pursuant to the order of that court. Originally the 1991 Rules and now the 2005 Rules provide further exceptions to that general principle.[63]A distinction is drawn on the question of disclosure between information which comes into the possession of a local authority or another party prior to or during family court proceedings, and documents filed with the court during those proceedings. Once a document is filed with the court, its use is subject to the control of the court.[64]The 2005 Rules do not alter that situation nor the position of preparatory documents for instance by a local authority or CAFCASS which contain information but which are not on the court file. They remain confidential, and subject to public interest immunity. Disclosure of the information in those documents to the police as happened here remains permissible, indeed it is to be encouraged in appropriate cases. As in the past that disclosure does not remove their confidentiality.[65]The importance of information being available to agencies involved in child protection work has been emphasised repeatedly in the Court of Appeal as I have set out. It is also in the Consultation and Response Paper published by the Government which led to the 2005 Rules. That is now made clear by the express inclusion of the police in that role in the 2005 Rules. It does not alter the existing position on exchange of information save to confirm the law as it has developed.[66]The only extension of power for the police under the 2005 Rules is the provision that the court’s judgment in private family cases can now be disclosed to the police without the need for the court’s permission. But it has to be for the purpose of a criminal investigation. I refer later to what I suggest is the reason for this.[67]The 2005 Rules also make clear that there is no need to obtain the court’s permission if information which a local authority for instance wishes to pass on to the police is already in a document filed with the family court. But it makes an important distinction.[68]In this case the medical reports given to the police were already on the court file. The unsigned statement of the mother and the signed statement of the father were destined for the court file, if the latter had not yet been filed. I shall deal separately with the statement of the father disclosed on 8 December.[69]What the 2005 Rules permit (taken with the authorities to which I have referred) is the communication of all the information within those documents to a child protection police officer whether they have been filed with the court or not. It does not expressly permit the copying of documents on the court file. In practice I consider this is properly permissible. It would not make sense for a busy social worker to try and summarise verbally or in writing what might be a complex medical report for the police.[70]But it establishes the difference between information and documents. Once the police have information from a local authority in the form of a document, they can use it for child protection purposes. However it is confidential and the document (as compared to the information within it) cannot otherwise be used without the court’s express permission. This applies both to documents not filed with the court e.g. social services records because they are confidential. It also applies to documents filed with the court because only the court can authorise their use.[71]This distinction does not in my view hamper the course of a police investigation. It arises from my interpretation of a police officer “serving in a child protection unit” and “acting in furtherance of the protection of children”.[72]I am satisfied that part of the protection of children and an officer’s role in a child protection unit covers the removal of a child from danger. It may also include seeking appropriate bail conditions to ensure that a child does not come into contact with someone charged with an offence whom there is reasonable cause to believe may harm the child.[73]But that is not all. Another part of the protection of children is the investigation and prosecution by the police of those who may be responsible for criminal offences to a child. Some police officers in a child protection unit will not be involved in any resulting criminal investigation. This is now less likely.[74]I do not see that the language of the 2005 Rules causes problems where the same officer has both roles. There is mention of communication of a judgment in family proceedings to the police for the purpose of criminal investigation. But this has I consider a separate reason for its conclusion. With the help of that provision investigating officers are saved the time and expense of an application to the family court to learn for example what evidence was available at a family hearing and the findings of fact made by the court. (See also para. 5.5 of the Government Response to the public consultation on disclosure of information in Family cases, July 2005).[75]If there were any difficulty in construing the Rules as I have set out above, I would look to the purpose of the amendments and the whole thrust of the cases to which I have referred. It is to ensure that agencies involved in the vital work of child protection have all the relevant information. It was the absence of sharing information that led 30 years ago to the failure to remove Maria Colwell from her mother and stepfather with tragic consequences and the resultant Inquiry.[76]I am satisfied therefore that DC Johnson can use the information but not the documents disclosed to him for both child protection and criminal investigation purposes. However to use the documents he had to seek the court’s permission. As I have stated, I readily give that permission.[77]It follows that I am against Miss Watson’s argument that no permission is required to use the documents. This confuses information with documents. It is for the Family Courts to decide whether documents that have been filed with their court should or should not be disclosed. Once disclosed the use of the documents in other courts will be for those other courts to determine.[78]I am also against Mr Samuels’ argument allowing the disclosure of the information by DC Johnson for child protection purposes only. This is a restrictive construction of the words of the Rule. It is not warranted by the language. It is at odds with any purposive construction.[79]I have already expressed my views about the likely reason for identifying the other role of a police officer in sub-rule 5. It needs no gloss or addition which I am satisfied would be required for Mr Samuels’ construction.

The father and mother’s undated statements

[80]Though I consider that permission should be given, I should make the position of the last 3 documents clear. They consist of an undated and unsigned statement from the mother, a signed statement of the father of 23 October 2005, and an unsigned statement of the father.[81]It appears likely that neither the first nor the last were on the court file when the police application was made. If that is so then no leave has to be sought from the court for that reason. However it is required if the documents are to be used because they are confidential documents. For the reasons I have given it is not needed to use the information contained in them.[82]There is an additional factor in relation to the father’s unsigned statement. Because of the circumstances in which it came to be prepared by the father’s solicitor, the father has claimed legal privilege. When he permitted its disclosure at the meeting of 8 December, it was not I find a total waiver of privilege but a waiver limited for the purpose of that meeting only.[83]That limitation would include any communication of the information in the statement as it would apply to any other document produced for the purpose of the hearing. But the privilege is not otherwise lost, see B v Auckland District Law Society (2003) 2 AC 736, as Mr Robertson rightly contended.[84]Though legal privilege which has been waived in part does not alter the situation here, that may not always be the case. Care therefore has to be taken, in particular on behalf of anyone producing a document in such circumstances, to make clear the basis on which this is done.

Guidance

[85]I have set out the parameters of the 2005 Rules as I find them to be for the purpose of this hearing. I hope from this the position of social workers and the police may be reasonably clear.[86]So far as social workers are concerned, when they are handing on information to the police it would be helpful if they: i) Indicate to the police the source of any information or document they disclose unless it is confidential. ii) At an appropriate time, inform all parties to proceedings about the information they have disclosed.[87]I say appropriate time because to do so immediately may not be right in some instances. It would always be prudent beforehand to inform the police of the proposed disclosure to the parties. Failure to do so could spoil a police operation or hamper an investigation.[88]In relation to the Police I have not had detailed submissions in particular on the difference between using information and using a document. But for my part I would not regard using a short quotation from a document as using the document. Also I consider that “acting in the protection of children” is to be given a broad interpretation.[89]The Police have considerable experience in using confidential information. It arises frequently when they are asked to provide references from the Criminal Records Bureau set up under the Police Act 1997 and regularly when considering disclosure before a criminal trial. I should add that when I refer to the Police I include the Crown Prosecution Service who advise the Police as well as authorising and conducting the prosecution of alleged offenders.[90]In relation to applications by the Police to use such documents, if it is unopposed there is scope for the application to be considered as a paper application and thus to avoid the time and cost of a court hearing. It can be sought by the local authority on a directions hearing where it is not contentious, and provided the court has all the relevant information. It is of course subject to the court subsequently requiring an oral hearing if this appears advisable.[91]I have been asked finally to comment on whether information relating to family proceedings can be disclosed to a lawyer representing the party in criminal proceedings. Under Rule 10.20A(2)(c) that information can be disclosed to – “(ii) the legal representative of a party, (iii) a professional legal advisor.”[92]They are defined in the 2005 Rules as follows - i) “legal representative” means a barrister or a solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990[4] who has been instructed to act for a party in relation to the proceedings. ii) “Professional acting in furtherance of the protection of children” includes ….. iii) “professional legal adviser” means a barrister or a solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who is providing advice to a party but is not instructed to represent that party in the proceedings.[93]It was the view of the advocates before me save for Mr Samuel that these definitions do not permit disclosure under these Rules to a defence lawyer without the permission of the court. I agree. It obviously does not cover a “legal representative” because a defence lawyer would not have “been instructed to act for a party in relation to the proceedings”. The proceedings refer to proceedings in private as defined in Rule 10.20A(1).[94]I am also satisfied that a defence lawyer is not a professional legal advisor as defined in the Rules. This covers a party to the Family proceedings seeking legal advice from a lawyer to assist in those proceedings. The language is not apt to cover advice to someone who is or may become a defendant in criminal proceedings rather than a party.[95]On a practical level I have been asked to consider how a defence lawyer wishing to obtain the court’s permission to disclosure should make the application. Is it always necessary to make a separate application or may it be made through a party to the proceedings?[96]Speaking only for myself, I would be content for a straightforward application to be made through another party subject to 3 provisos. Firstly notice should be given in writing in advance of a hearing to all parties. Secondly the application should identify the documents concerned and be supported by a letter from the defence lawyer. Finally the court will of course reserve the right to hear argument directly from the defence lawyer.[97]Finally I should mention that I am aware of the national protocol between the Crown Prosecution Service, the Police, and local authorities. This concerns the exchange of information relating to the investigation and prosecution in child abuse cases. I am also aware of the government’s guidance contained in ‘Working Together to Safeguard Children’ now in its third version.[98]I have not been referred specifically to them nor has any argument been addressed to me on them. It follows that nothing I have said is intended to reflect on the use and efficacy of these important documents.[99]This hearing has been concerned with the use of confidential information and documents in a family case. My judgment is of course dependent on the facts of this application. I am grateful for the assistance I have received from the advocates.

Cited in 1 later judgment