Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam)

[2018] EWHC 1819 (Fam)

Case No PR17C00458

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 02/07/2018

Before

MRS JUSTICE GWYNNETH KNOWLES

Between

LANCASHIRE COUNTY COUNCILApplicant

ARespondents

BRespondent

ZRespondent

Miss Heaton QC and Mr Hart for local authority

Miss Taylor QC and Miss Bowcock for mother, A

Mr Momtaz QC and Mr Hunt for father, B

Mr Rothery and Mr Warner for child, Z.

Hearing Hearing dates: 8,9,10,11,14,15,16,17,18, 21,22,23,24,25, 29,30 and 31 May 2018

Judgment Approved

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[1]On 27 June 2018, I handed down a judgment following a fact-finding hearing in care proceedings concerning Z, a little girl now aged 22 months. On 16 August 2017, Z’s sister, X - then an eight-day old baby – collapsed at about 23.00 at the home she shared with her parents and sister and died at 00.06 on 17 August 2017. The cause of X’s death was severe brain and spinal injuries caused by a shaking injury with impact. Alongside these fatal injuries, X also sustained haemorrhaging to her eyes and bruising. Additionally, some 36 -72 hours before her death, X had also sustained head injuries, bruising and a metaphyseal fracture of her left femur. On both occasions when she was injured, X was in the joint care of her mother, A, and her father, B. I found that X was injured by either her mother or her father on both occasions and, for the reasons set out in my companion judgment, I could not decide which of the two was responsible. Both her parents lied to me about what had happened in the family home to protect either themselves or the other parent.

[2]The fact-finding hearing was beset by problems arising from the late disclosure of material held by Lancashire Constabulary [“the police”]. It was not evident until day five of the hearing that the police held material of potential relevance to the issues I had to determine. With the assistance of counsel and the officers assigned to the investigation into X’s death, the court was provided by day nine of the hearing with an additional 900 pages of material. The hearing itself was significantly extended by both the process of disclosure undertaken at court and by the need to allow counsel time to digest and take instructions on this material.

[3]It will be obvious that the non-disclosure by the police of potentially relevant material could have both prejudiced the right of X’s parents to a fair hearing and deprived the court of information which might have shed light on what happened to X whilst in the care of her parents. That this could have happened in a case of such seriousness was bad enough but, in this case, the potential unfairness was magnified by the vulnerability of X’s mother who had been assessed as requiring the assistance of an intermediary throughout the hearing. Had it not been for the diligence of counsel and the time I allowed for instructions to be taken, the entire hearing might have been fundamentally compromised on fairness grounds.

[4]At the conclusion of the hearing, I directed that relevant orders and documents were to be disclosed to the police and invited them, together with the parties, to make submissions in writing(a) addressing what had gone wrong in this case and

(b) making suggestions for how these problems might be avoided in the future. I have been provided with very helpful material from the local authority about its dealings with the police prior to and during the hearing, and with a statement from the Senior Investigating Officer [SIO]. I have received submissions in writing from the advocates and also from the SIO on behalf of the police. I indicated that I would give a judgment addressing the issue of police disclosure separate from my judgment determining facts in relation to the death of X.

[5]This case is not, sadly, an isolated example of inadequate police disclosure within family proceedings. Francis J in London Borough of Southwark v US and Others

[2017] EWHC 3707 (Fam)

highlighted “a catalogue of police failures in terms of disclosure” in a case concerning the death of a young girl, L, in her family home [paragraph 103]. His judgment identified the failure by another police force to comply with the 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings [“the Protocol”] and made some suggestions as to how practice might be improved in circumstances where there appeared to be non-compliance by the police with their disclosure obligations.

[6]I hope that this judgment builds on the helpful suggestions made by Francis J. The President has seen a copy of my judgment. What I have suggested is not formal guidance. I understand from the President, who has discussed this with his designated successor, that it is proposed to consult with the relevant authorities about the operation of the Protocol with a view to it being re-issued in due course by the President in revised and updated form.

LEGAL AND PRACTICE FRAMEWORK

[7]The efficient process of disclosure between the criminal and family jurisdictions is essential to the proper administration of justice. For family proceedings, it is governed by the Family Procedure Rules 2010 [“the FPR”] and the Protocol and it is reinforced by court orders on occasion. The criminal and family courts must be able to rely on assurances from the police that all relevant material has been disclosed.

[8]Part 21 of the FPR “Miscellaneous Rules About Disclosure And Inspection Of Documents” makes provision for the disclosure and inspection of documents against persons who are not parties to the proceedings. Within family proceedings, disclosure is taken to mean the production of copies of documents though this is, strictly speaking, a means of providing for the inspection of documents. Rule 21.1(1) of the FPR states that:

“A party discloses a document by stating that the document exists or has existed”

. The next logical step in the process is the inspection of a document by a party when that document has been disclosed by another person [Rule 21.1(2)]. Thereafter, Rule 21.2 makes provision for orders for disclosure against persons who are not parties to the proceedings. The relevant provisions are as follows: … (3) The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs. (4) An order under this rule must – (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require the respondent, when making disclosure to specify any of those documents – (i) which are no longer in the respondent’s control; or (ii) in respect of which the respondent claims a right or duty to withhold inspection. (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in the respondent’s control; and (b) specify the time and place for disclosure and inspection. (6) An order under this rule must not compel a person to produce any document which that person could not be compelled to produce at the final hearing. (7) This rule does not limit any other power which the court may have to order disclosure against a person who is not a party to proceedings. When an order for disclosure is made, for example, against the police, they are able to apply under Rule 21.3 to withhold inspection or disclosure of a document on the ground that disclosure would damage the public interest.

[9]Moylan J (as he then was) pointed out in Tchenguiz-Imerman v Imerman

[2014] 1 FLR 232

that the FPR does not provide a disclosure code for parties to family proceedings. Recourse should be had to the common law position as now encapsulated in the Civil Procedure Rules 1998 [“the CPR”]. These set out a more detailed code than the FPR for disclosure and inspection between parties. I note that the CPR 1998 makes provision for the inspection of documents between parties to be refused on the grounds that this would be disproportionate [Rule 31.3(2), CPR].

[10]From 1 January 2014, the disclosure of information and material between the family justice system and the police where Children Act 1989 proceedings are running in parallel to a criminal investigation or prosecution is governed by the Protocol. This applies to cases involving criminal investigations into alleged child abuse (both sexual and non-sexual) where the victims were aged 17 or under at the time of the alleged offence and/or there are family proceedings concerning a child. One of the key objectives of the Protocol is to facilitate timely and consistent disclosure of information and documents from the police into the family justice system.

[11]What follows is a summary of the key features of the Protocol relevant to the issues in this case:a. A. As soon as reasonably practicable and in any event on the issue of proceedings, the local authority will provide notice to the police of the contemplation or existence of family proceedings using the Annex D form. This form also acts as a request for disclosure from the police to include a reasonable timescale not exceeding 14 days for the disclosure of the material. The form is sent to the police single point of contact (SPOC);

b. B. The Protocol should be used proportionately and is designed to facilitate only requests for material held by the police relevant to the central issues in the case. Request for disclosure should not be drawn any wider than is absolutely necessary and only relevant material should be disclosed. The disclosure request to the police must be focused, identifying the documents which are really needed.

c. C. Within five working days of the commencement of the criminal investigation, the police will provide to the local authority SPOC details of the criminal investigation using the Annex C form. Unless disclosure is required to ensure the immediate safety of a child, the police will not disclose material where to do so might prejudice the investigation and/or prosecution (or where, on the grounds of confidentiality, it is necessary to obtain the consent of persons providing statements). However, redacted disclosure should be made wherever possible. The police will indicate on the Annex D form the approximate date on which disclosure can be made. The police (in consultation with the CPS) must provide detailed reasons on the Annex D form as to why any material is being withheld.

d. D. The family court may request disclosure from the local authority of material held by it, relating to the criminal case. The local authority will notify the CPS (or the police if criminal proceedings have not commenced) as soon as reasonably practicable. Where the police and/or the CPS object to disclosure, they will make appropriate and timely representations to the family court explaining why such disclosure might be capable of prejudicing the criminal proceedings or investigation.

e. E. The local authority shall notify (within two working days of the application being made) the police and the CPS of any application to the family court (whether by the local authority or any other party) for disclosure of prosecution material. The local authority shall notify the police and/or the CPS of the date and time of the family court hearing at which disclosure will be determined. Any order by the family court for disclosure will be in the form at Annex H, use of which by the family court is mandatory. Where appropriate, the police and/or the CPS will assist the local authority in drafting directions.

f. F. The local authority will ensure that any order against the police and/or the CPS is served as soon as reasonably practicable (and in any event within two working days of the date of the order) on the police and/or the CPS.

g. G. The police and the CPS will comply with any court order.

[12]In Re H-L (A Child)

[2013] EWCA Civ 655

the President, at paragraph 8 of the Court of Appeal’s judgment, stated that:

“… more thought needs to be given than is often the case to an appropriately focused application for disclosure. Too often, applications for the disclosure of medical or police records seek the disclosure of everything, without any adequate thought being given to identifying the particular class or classes of documents - here, indeed, a particular document - whose disclosure is really needed.”

[13]Alongside the Protocol, there is, in existence, a Lancashire Protocol relating to the disclosure of information to and from family proceedings dated May 2014. The parties to that protocol are the Designated Family Court Judge for Lancashire, the Crown Court resident judges, the Crown Prosecution Service, Lancashire Constabulary and the local authorities within Lancashire. This local Protocol was adopted by these agencies, as required by section 19 of the national Protocol. Its provisions mirror and, to some extent, build on the provisions of the national Protocol. Thus, paragraph4.1 of the local Protocol requires the local authority, when seeking disclosure from the police, to state precisely what evidence and information is sought and, where appropriate, why it is relevant to the proceedings. Paragraph

4.2 reminds local authorities not to draw a request for disclosure any wider than is necessary and emphasises that requests or court orders should not be so broad as to ask for “any and all material from the police file”.

[14]Paragraph 5.2 of the local Protocol provides that the police will seek to provide disclosure of all relevant material within 10 working days where a case is subject to ongoing proceedings. If the information sought relates to an ongoing inquiry/investigation, it is still expected that a “primary” disclosure of relevant material will be provided prior to any suspect being charged. The obligation to provide secondary disclosure of further relevant information will be ongoing. Finally, paragraph 2.5 of the local Protocol states that “adherence to the procedures set out within this Protocol should ensure that ordinarily it will not be necessary for a Court Order to be sought”.

DISCLOSURE BY THE POLICE: THESE PROCEEDINGS

[15]Care proceedings in relation to Z were issued on 23 August 2017. The proceedings were urgent because the parents were on police bail with a condition that they should not have contact with Z save for that arranged by the local authority. On the same date the local authority solicitor sent the protocol form at Annex 1 of the local protocol (this form being similar to the Annex D form mentioned in the national Protocol). The form provided a brief summary of events giving rise to the proceedings and asked for the following information:(a) a PNC report for each parent;

(b) all logs of incidents between the couple and/or referrals for domestic violence;

(d) bail conditions;

(e) any witness statements that would support domestic violence incidents;

(f) post-mortem or extract of the same leading to arrest if available; and

(g) witness statements regarding the arrest for murder if this would not be detrimental to the criminal investigation. Notwithstanding that request, the court made an order for disclosure on 25 August 2017, directing the police to provide to the local authority by 15 September 2017 all records and antecedents relating to the parents and “all materials arising from its investigation into the death of [X]”. The police were given permission to apply to the court to vary or discharge the order. I note that a police officer involved in the investigation attended court and was present during the hearing. The local authority solicitor emailed the police with details of the order on 30 August 2017 and also requested that she be informed of any difficulties with either the order or compliance with it. I observe that the order was drawn much wider than the initial Protocol request.

[16]The Senior Investigating Officer assigned to investigate X’s death appointed a child protection Detective Inspector to oversee and manage the family court process alongside an experienced child protection Detective Constable. I was told that the Family Court Disclosure Team within the legal department of Lancashire Constabulary has responsibility for facilitating the disclosure of material in support of local authority care proceedings. Staff within the Department have access to the Constabulary Case Management System (Connect) and could source documents and information in liaison with the officer in the case.

[17]On 30 August 2017, the Detective Inspector emailed the local authority indicating that the police did not wish to disclose “all” of the information sought by, I infer, the court order. Later that same day, the local authority suggested various amendments to the order dated 25 August 2017 and explained that the police had said they would not disclose all the information in their possession as it was feared this would jeopardise the criminal investigation. His Honour Judge Duggan, who made the order dated 25 August 2017, accepted the amendments sought to his order and commented in an email to the local authority that the order for police disclosure was to be complied with or was to be the subject of a reasoned police application. The chronologies provided to me do not clarify whether the judge’s comments were relayed either to the Detective Inspector/Detective Constable or to the SIO.

[18]The initial police disclosure bundle was given to the parties on 6 September 2017, and contained a summary of the case, the PNC reports, the arrest history, a pathology briefing, a record of the first accounts of how X came to be injured, incident reports, PVP reports, photographs of the scene and witness statements. On 13 September 2017, the Detective Inspector emailed the local authority explaining that, if more material was needed by the family court, the force solicitor would need to be instructed. The local authority solicitor responded that same day, stating that in her experience the court would be asking for “broader disclosure” than had been provided thus far. She explained that, for example, photographs of the family home could be of great assistance since the conditions in the home might tell the court a great deal about life for the children. That email met with some success as the Detective Inspector indicated that photographs of the scene would be provided as soon as possible and also agreed to seek permission for the release of the recordings of the parents’ interviews. His email said this:

“I fully understand your position and we will provide as much material as possible. What we were struggling with is the request to “Provide Everything”…”

It is apparent that the Detective Inspector had not understood that there was a court order requiring disclosure of all the materials arising from the police investigation rather than a request pursuant to the local Protocol. The local authority solicitor emailed the Detective Inspector in reply, saying that the parents’ phone and Internet records and emails would also be helpful as seeing the messages between the parents and the outside world might explain missed appointments with services.

[19]On 22 September 2017, the Detective Inspector attended a court hearing at which the police were recorded as having agreed to disclose all outstanding relevant material to the local authority no later than 13 October 2017, and sooner if possible. The matter was listed for directions before Hayden J on 20 October 2017 and a representative of the police was invited to attend that hearing and to be legally represented if so advised. Following the hearing in September 2017, the police provided a large amount of redacted material to the local authority for onward disclosure to the other parties. At the hearing on 20 October 2017, the Detective Inspector attended and was represented by a solicitor. The police informed the court of the timetable for the filing of expert reports and, by a further order dated 25 October 2017, they were ordered to provide unredacted copies of the documents which had already been disclosed.

[20]On 14 November 2017, the police made an application to delay disclosure of the expert reports in its possession until 11 December 2017 in order that any further interview of the parents would not be prejudiced by the disclosure of this material. By order dated 6 December 2017, the court permitted the police to provide disclosure of the medical reports and any additional interviews conducted with the parents no later than 5 January 2018. The police request for the disclosure of evidence from the family proceedings, namely statements made by the mother and the father and any psychological and/or psychiatric reports about the parents, was granted.

[21]On 9 February 2018, I directed that the police should provide by 12 February 2018 their interrogation of the telephone records of the parents (including third-party details) and the video recordings of the parents’ interviews. The police were given permission to apply to set aside those disclosure orders on two days’ written notice to the parties.

[22]On 19 March 2018, the police informed the local authority by email that it wished to await the outcome fact-finding hearing listed to commence on 8 May 2018 before deciding whether or not the parents should be charged in connection with the death of X. The email also stated the following:

“… We both felt it may be useful to meet with yourself & possibly counsel for LCC, to discuss what our view of the strengths and weaknesses of the case are & to ensure we have appropriately provided all the information the Family Court requires. If you think this would be worthwhile we are available on Tuesday 10 April.”

The offer of a meeting between the local authority and police was not taken up by the local authority. I have not been told the reason for this.

[23]On 30 April 2018, the police once more asked the local authority if there was anything else needed from them prior to the commencement of the fact-finding hearing. Unfortunately, the local authority solicitor with conduct of the case was on leave between 27 April and 8 May 2018 and so the query by the police remained unanswered.

[24]For the avoidance of doubt, I record that what I have summarised above represents but a small proportion of the extensive contact between the local authority and the police about matters relating to the disclosure of information from the police investigation.

[25]At the start of the fact-finding hearing on 8 May 2018, the index to the bundle showed that, in addition to the expert reports disclosed by the police and the transcripts of the interviews with the mother and the father, there were some 800 pages of police witness statements and miscellaneous disclosure in the court bundle. By the end of the hearing, approximately another 900 pages of witness statements and miscellaneous disclosure had been made available to the court by the police.

[26]On day five of the hearing I was told that the police had failed to disclose a statement from the social worker about the mother’s handling of Z during contact. This was plainly relevant to the issues in the case. The Detective Inspector attended court the following day to liaise with counsel and, on the following two days, the SIO together with another officer attended court to assist in identifying whether the police held relevant material that had not been disclosed. The statement provided by the SIO recorded that, upon viewing the disclosure bundles provided to the local authority during the course of the investigation and comparing this to the volume of documentation recorded on the police case management system, it became apparent that there might be other documents that had some bearing or relevance to the proceedings that had not been disclosed. As a result of that review process undertaken by the police in conjunction with counsel, a significant amount of additional material was disclosed to the parties, that process being completed by day nine of the hearing.

DISCUSSION

[27]Given what occurred during the fact-finding hearing, I consider that the process whereby material from the police investigation was made available to the family court was manifestly inadequate. I observe that at no time prior to the hearing did Lancashire Constabulary notify the parties that there was further evidence which had not been disclosed because it was thought by the police to be irrelevant. Each tranche of disclosure which became available during the court hearing raised more questions leading to further enquiry being made and yet more disclosure following in consequence.

[28]Much of what was disclosed was pertinent to the issues, such as the witness statement of the social worker who had concerns about the mother’s handling of Z and the statement from the maternal grandmother exhibiting a handwritten document dated 23 August 2017 containing the mother’s account of what was said to have taken place in the family home in the days prior to X being fatally injured. Additionally, a large tranche of material extracted from the parents’ social media accounts was made available, which both confirmed existing witness evidence and shed light on the family dynamics before and after X’s death. I accept the submission by Miss Heaton QC that much of this material was greatly overshadowed in terms of significance by the late emergence of information about the clandestine resumption of the parents’ relationship but, as she acknowledged, the situation might well have been otherwise. A crucial piece of evidence might have emerged at a very late stage, for example, which required further consideration by some of the experts and their recall to give additional oral evidence. The list of possibilities is infinitely varied. As it was, valuable court time over two if not three days was lost to the process of(a) checking and cross-checking what the police had which might be relevant and

(b) taking instructions from clients.

[29]I have had the benefit of a report dated 17 May 2018, together with written submissions from the SIO. Those have been extremely helpful documents in identifying what went wrong and why. I record my thanks to the SIO and her colleagues who attended court on several days to remedy the poor state of the police disclosure and to assist with the identification of what might be pertinent from the outstanding material in the possession of the police. What follows is taken from the documents produced by the SIO.

[30]As is already apparent, following the implementation of the national Protocol, Lancashire Constabulary adopted its own local Protocol with the agreement of partner agencies. It also increased its resources within the Disclosure Team at Police Headquarters. In 2015, joint Force/CPS guidance was issued to officers and prosecutors, and the manager of the Disclosure Team at Force Headquarters regularly attended the Lancashire Family Court Business Committee. In 2017, training sessions were provided to staff within the Public Protection Unit, highlighting the guidance and procedures to be followed when matters came before the family court. Despite these commendable efforts, what went wrong in this case has revealed a serious problem within Lancashire Constabulary which may be replicated in other police forces across England and Wales.

[31]The Disclosure Team with responsibility for facilitating the disclosure of police material in support of local authority care proceedings has access to the Constabulary Case Management System known as Connect and can source documents and information about an investigation in liaison with the officer in the case. Serious and more complex investigations are managed by the Force Major Investigation Team which uses a different case management system known as HOLMES2. This is a Home Office system used by police forces nationally to manage complex and serious investigations to ensure that no lines of enquiry are missed. Within Lancashire Constabulary, the Disclosure Team did not have access to the HOLMES2 system and were thus unable to see the full list of material in the possession of the police relating to the death of X. The inability of the Disclosure Team to see the totality of the material possessed by the police was responsible for the inadequate disclosure received by the family court.

[32]As a direct consequence of this case, Lancashire Constabulary has taken the following action: a) The SIO has spoken to The National Child Death Investigation Working Group and it has agreed to amend the Police Service Summary of Guidance from the national Protocol. The amended document will provide additional guidance in relation to family court disclosure and the responsibilities of an SIO. b) A meeting between the local authorities served by Lancashire Constabulary has been arranged in July 2018 to review the current processes of disclosure and to develop robust effective practices locally. c) Immediate organisational learning has taken place within Lancashire Constabulary through the raised awareness of all SIOs who have been informed of the details and issues in this case. d) A request has been made to the national Home Office HOLMES2 Review Team for an automated ‘flag’ to be raised on the HOLMES2 system in any homicide cases to ensure that a family court disclosure strategy is implemented.

[33]Whether these actions will resolve the problems caused by the disconnect between the two data management systems used by Lancashire Constabulary remains to be seen. I consider that it would be advisable if other police forces checked their own processes immediately to ensure that the problem evident in this case is not present in their own organisation so as to compromise their responsibility to make the disclosure required by the family court.

[34]I also consider it would be prudent for local authority lawyers who bear the brunt of liaison with their local police force to(a) check which data management system is being used to record and collate information in any case where disclosure into family proceedings is required and

(b) confirm that the Disclosure Team in that force has access to the relevant system.

[35]The other matter which emerges from these proceedings is that there was some confusion in the minds of the junior officers as to what might be relevant information for the purpose of family proceedings and the difference between adherence to the Protocol, either local or national, and compliance with a court order. These are training issues which need to be addressed. If this is not done, there is little prospect that, even with access to the correct data management system, disclosure officers will readily identify material relevant to family proceedings.

[36]This, in turn, gives rise to a more fundamental problem in respect of third-party disclosure from the police into the family court process. Simply put, disclosure is requested by those who don’t know what there is from those who don’t know what is needed. Thus, the parties to family proceedings don’t know what material is held by the police and so draft orders as widely as possible, imposing a significant burden on police disclosure officers. Conversely, the police have a poor understanding of the wide evidential canvas upon which the family court makes decisions and inevitably view the question of relevance through the narrow prism of criminal proceedings. In good faith the police provide what they think the family court needs but the reality is that they are ill placed to judge.

[37]In this case, it was also apparent that, notwithstanding the existence of the local and national Protocols, the family court made orders in the widest terms at the very outset of the proceedings. Paragraph 2.5 of the local Protocol, which expressed the hope that adherence to it would obviate the need for a court order, was simply ignored in this case. The national Protocol recognises that disclosure may take place via voluntary adherence to the Protocol but also accepts that orders for disclosure may sometimes be made. I do not know why immediate recourse was had to the making of a disclosure order, particularly in circumstances where the police confirmed at the hearing on 25 August 2017 that they would be in a position to provide disclosure within three weeks. My suspicion is that the making of an order in respect of police disclosure is seen as more likely to induce compliance on behalf of the police by requiring priority to be given to the disclosure task. If I am correct, this practice renders otiose those aspects of the local and national Protocols which suggest a voluntary route for disclosure into the family justice system (for example, paragraph 6 of the national Protocol). Whether or not a court order in every case requiring disclosure from the police is the correct course for the family court and the parties to family proceedings to implement - given that this undermines what the local Protocol intended to achieve and also cuts across the suggested voluntary disclosure route in the national Protocol - will be a matter for others to consider.

[38]Finally, what of the responsibilities of the parties to family proceedings? I have already acknowledged the significant burden on the local authority’s solicitor of liaison with the police about disclosure issues. In this case, the solicitor did remarkably well to obtain what was thought to be relevant at the time. However, one omission by the local authority was the failure to have a meeting with the police when this was requested on 19 March 2018. The purpose of that meeting was, in part, to ensure that the police had provided all the information the family court required. Such a meeting might have brought the existence of a large amount of undisclosed material to light though I note that even this might not have happened given that the Detective Inspector and his colleagues were unaware of the significance of the two separate data management systems being operated in this case.

[39]The other reason the existence of undisclosed material might not have been apparent is that the necessary forensic analysis of what had been disclosed was not carried out by the parties to these proceedings prior to the start of the fact-finding hearing. This might have made apparent some of the omissions in disclosure which emerged at the hearing itself. The current arrangements for public funding do not encourage advocates in the family justice system, who are often under considerable pressure, to analyse vast swathes of material in advance, for example, of a directions hearing. They simply do not get paid to do so. It is regrettably often only when the actual hearing is being prepared that anomalies in disclosure become obvious. To their credit, Miss Taylor QC and Mr Rothery both conceded that some of the evidential anomalies in this case would have been apparent from a close reading of the evidence as and when it was disclosed by the police.

[40]There is no simple cost-neutral solution to these problems. However, the applicant in public law proceedings - the local authority - must prove its case and, in so doing, must be alive to the strengths and weaknesses of all the evidence before the court. I regard that statement as supportive of the dicta of Ryder LJ in paragraph 36 of Re W (Care Proceedings: Functions of the court and the local authority)

[2013] EWCA Civ 1227

namely, that proceedings under the Children Act 1989 are quasi inquisitorial in that the judge has to decide both whether threshold is crossed and the basis upon which that is so, whether or not the local authority or any other party agrees. It seems to me obvious that a local authority, with the greater resources available to it, will bear the lion’s share of the burden of assisting the court to determine not only its application but also any other pertinent issues in a case. It does so by ensuring that the evidence - from whatever source - is complete and in order and it takes the lead in ensuring that case management directions have been complied with. For a local authority to act in that impartial manner in public law proceedings is to facilitate the court’s quasi inquisitorial role in a process which is fair to all parties. In saying this, I make it plain that the other parties to proceedings are not absolved from their duties to cooperate with the court and comply with the court’s directions. Rather, the onus on the local authority, as the state agent in care proceedings, to conduct itself fairly and to assist the court is necessarily greater.

[41]None of the above is novel. As is required of crown prosecutors in criminal proceedings, local authorities must ensure that the law is properly applied; that relevant evidence is put before the court; and that the obligations of disclosure are complied with. Like crown prosecutors, the local authority must be fair, independent and objective and should always act in the interests of justice and not solely for the purpose of obtaining the order it may seek in public law proceedings. If it be thought that all the local authority requires from the police is material that will assist its case, that would represent a profound misunderstanding of the local authority’s duties to the court.

[42]To place these observations in context, the case law relating to the disclosure of local authority records in care proceedings has long emphasised the duties of local authorities to be open in the disclosure of all relevant material in their possession. The analysis of the relevant case law by Munby LJ (as he then was) in Durham County Council v Dunn

[2012] EWCA Civ 1654

traces the judicial formulation and refinement of those duties [see paragraphs 37-43 in particular]. It bears repetition in the light of the observations I have made about the duty of a local authority to take an active role in preparing a case for determination by the court. What follows draws on Munby LJ’s analysis in the Durham case.

[43]In November 1989, the Court of Appeal had to consider the disclosure of local authority records in the context of care proceedings where allegations of sexual abuse were being made against a parent [R v Hampshire County Council ex parte K and Another

[1990] 1 FLR 330

]. The interest of the child was emphasised [page 336]:

“… as part and parcel of its general welfare, not only in having its own voice sympathetically heard and its own needs sensitively considered but also in ensuring that its parents are given every proper opportunity of having the evidence fairly tested and preparing themselves in advance to meet the grave charges against them…”

The Court went on to state in the clearest of terms what the local authority’s duties were:

“…Local authorities therefore have a high duty in law, not only on grounds of general fairness but also in the direct interest of a child whose welfare they serve, to be open in the disclosure of all relevant material affecting that child in their possession or power (excluding documents protected on established grounds of public interest immunity) which may be of assistance to the natural parent or parents in rebutting charges against one or both of them of in any way ill-treating the child”

. The practical application of that duty was explained by Cazalet J in Re C (Expert Evidence: Disclosure: Practice)

[1995] 1 FLR 204

(FD) held at 209-G-210A as follows:

“In R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330 it was held that a local authority who brought care proceedings has a duty to disclose all relevant information in its possession or power which might assist parents to rebut allegations being made against them, save for that which is protected by public interest immunity… … In my view it is the responsibility of the local authority actively to consider what documents it has in its possession which are or may be relevant to the issues as they affect the child, its family and any other person who is relevant in regard to an allegation of significant harm, and to the care and upbringing of the child in the context of the welfare checklist issues. The local authority should not content itself with disclosing the documents which support its case but must consider itself under a duty to disclose in the interests of the child and of justice documents which may modify or cast doubt on its case. The particular concern should relate to those documents which actually help the case of an opposing party. If there is any doubt about whether the information is relevant, consideration should be given to notifying the affected parties of the existence of the material. Whilst the temptation to invite costly, intrusive and pointless fishing expeditions should be avoided, there should be a presumption in favour of disclosure of potentially helpful information. If documents are obviously relevant and not protected from disclosure by public interest immunity, then the local authority should initiate disclosure.”

[44]Those duties have been underscored by the Strasbourg jurisprudence. In McMichael v United Kingdom

(1995) 20 EHRR 205

, the court was concerned with care proceedings in which social services and medical reports had been given to the court but not disclosed to the parents though the contents were made known to them. The court held that there had been violations of both Article 6 and Article 8, and in paragraph 80 held that the lack of disclosure of such vital documents was capable of affecting the ability of the parents not only to influence the outcome of the proceedings but also to pursue an appeal. Indeed, Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings. In TP and KM v United Kingdom

[2001] 2 FLR 549

[paragraph 82] the court said:

“The positive obligation of the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by a parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.”

[45]All the above requires, in my view, that a local authority should take responsibility for ensuring that disclosure provided by the police in proceedings such as these is complete. Anomalies in the disclosure should be brought to the court’s attention as soon as possible. To do this properly takes time and time taken has a financial cost. That cannot be avoided given the seriousness of what is at stake for the children and the adults involved in these proceedings. I, like all of those involved in the family justice system, am acutely aware of the financial pressures on local authorities, but I venture to suggest that time taken to resolve any issues about police disclosure prior to the start of the hearing is likely to save local authorities time and ultimately money.

SOME SUGGESTED SOLUTIONS

[46]With the assistance of counsel, what follows is an attempt to provide practical solutions to the problems evident in the operation of both the national and local Protocols insofar as police disclosure into the family justice system is concerned. I make it plain that much of what follows represents an addition to the current national Protocol. I consider that what I suggest is consistent with the aims and objectives of that Protocol, particularly the facilitation of timely and consistent disclosure of information and documents from the police and CPS into the family justice system [paragraph 3.3 of the national Protocol]. I make it clear that the national Protocol should be followed pending the publication of any guidance from the President of the Family Division.

[47]First, I repeat what I said in paragraphs 33 and 34. It would be advisable if all the police forces in England and Wales checked their own data management systems immediately to ensure that the problem evident in this case is not present in their own organisation. Local authority lawyers should also check with their local police force which data management system is being used to record and collate information any case where disclosure into family proceedings is required and to confirm that the disclosure team in that force has access to the relevant system.

[48]I make the following suggestions by reference to paragraph 110 of the judgment of Francis J in the London Borough of Southwark case [see paragraph 5 above] in which he made a number of suggestions to assist parties in family proceedings where it appeared that the police were not cooperating with their disclosure obligations. Paragraph 110 reads as follows: “(i) The local authority will make a protocol request to the police at least 14 days prior to the issue of s.31 proceedings. In cases where the issue of s.31 proceedings is immediately preceded by an application for an emergency protection order or the s.31 proceedings are listed upon short notice, the protocol request shall be made upon issue of the s.31 proceedings. (ii) Not later than seven days prior to the case management hearing, the local authority will issue an application for disclosure against the relevant police authority. The local authority will invite the court to list the application for disclosure on the same day as the case management hearing. The local authority will serve a copy of the application upon the police at least seven days prior to the case management hearing. The senior investigating police officer in the case should be invited to attend the case management hearing and be legally represented. (iii) In the event that the police wish to withhold any disclosure from the parties, any application should be made by them not less than two days prior to the case management hearing. The application should set out clearly the reasons why disclosure is being opposed and why a redacted version cannot be provided. (iv) Upon receipt of a protocol request or an application for disclosure, the police will provide a list or schedule of all the evidence and material they have within their possession that is relevant to the central issues in the Family Court case. This list shall address the following: a) A short description of the evidence/material; b) Whether the police agree to disclose that particular piece of evidence or material to the parties; and c) In the event the police oppose disclosure of a particular piece of evidence or material clear reasons must be provided. (v) At the case management hearing the police will provide the court with the following:(a) details of any offences;

(b) whether any suspect(s) have been charged or not;

(d) what bail conditions are applicable;

(e) any criminal court timescales. (vi) In the event that the police seek to oppose disclosure on the basis that they consider the evidence to be irrelevant to the family proceedings the police will provide a copy of the documents to the court for the court to determine whether or not the evidence is relevant to the family proceedings. (vii) The local authority will, throughout the course of the family proceedings, continue to liaise with the police as to whether any new evidence is obtained following the case management hearing. The local authority will update the parties and the court on a regular basis as to the outcomes of their liaison with the police. (viii) Prior to any fact-finding hearing and/or final hearing the police will confirm which, if any, new evidence has been secured following the case management hearing and provide a further list or schedule addressing the issues set out above. (ix) If the police object to any new evidence or material being disclosed the police must make a PII application as soon as practicable and, in any event, within seven days of that objection. (x) The recording of any directions made in connection with police disclosure on case management orders should be sufficiently clear so as to enable the reader to have the ability to understand the key decision-making timetable in connection with this issue and the pro forma disclosure order contained within the protocol should be used. (xi) It shall be the responsibility of the police and local authority to ensure that the police evidence is either disclosed to the other parties or that the court has the opportunity to determine any issue as to its relevance and/or PII application, sufficiently in advance of any fixture so as to enable the fact-finding or main hearing to proceed effectively.” a) A short description of the evidence/material; b) Whether the police agree to disclose that particular piece of evidence or material to the parties; and c) In the event the police oppose disclosure of a particular piece of evidence or material clear reasons must be provided.

[49]The schedule suggested at (iv) above should, in practice, not be difficult to produce. During the course of the hearing in this case, I was provided with a number of schedules of the evidence in the possession of the police taken from both of the data management systems in operation in this case [Connect and HOLMES2]. I suggest that such a schedule should be provided 2 clear working days before the case management hearing to allow the parties to consider its contents. Though Francis J suggested that the schedule should be limited to the evidence and material relevant to the central issues in the family case, I have already commented that the police are ill-placed to judge what might be relevant. In my view, the schedule should contain all evidence and material in the possession of the police at that time. There should be no obligation on the police to produce any of this evidence/material for inspection until either agreement is reached between the parties and the police as to what is relevant or the court has ruled on the matter. That approach – whilst wide in initial scope – accords with FPR Rule 21.1(1) and Rule 21.1(2).

[50]It may be a matter for consideration whether the court orders, at the case management hearing, the disclosure of all relevant evidence and/or material in the possession of the police. This places the police under an ongoing duty to give effect to that order and promotes liaison with the local authority, in the first instance, since it is the party with the primary responsibility of getting the family case ready for a fact-finding hearing or a final determination. Though this proposal does not accord with the appropriately focussed application for disclosure commended in Re H-L (A Child) [see paragraph 12 above], it tackles the obvious problem I identified in paragraph 36, namely that the parties to the proceedings do not know what the police possess. However, I recognise that this suggestion is at odds with the provisions of both the national and local Protocols.

[51]At (v) it was suggested that the police should provide the court with information relating to any offences, arising presumably out of its investigation. For completeness, I suggest that a copy of each adult’s criminal record is also provided.

[52]At (vii) the need for ongoing liaison between the local authority and the police was stressed. I agree this is vital and suggest – as does Francis J at (viii) - that the police should, in any event, produce an updating schedule of evidence/material 14 days before the IRH or directions hearing before any fact-finding hearing. This should be circulated to the parties and should identify:(a) what has been disclosed;

(b) what has been deemed to be irrelevant;

(d) any new material or evidence and whether disclosure is opposed in relation to each piece of new evidence and, if so, on what basis. Having seen this schedule, the parties should let the local authority know what they consider to be relevant and, if there is agreement about this, the police should disclose the information to the local authority for onward transmission to the parties without delay. If disclosure is resisted, the police should make an application to the court.

[53]An additional step which should take place 5 days prior to any IRH or directions hearing before a fact-finding hearing is for a meeting to take place between the local authority solicitor (with preferably the advocate conducting the local authority’s case) and the police disclosure team. The purpose of that meeting should be to check that the police disclosure is complete and to provide an update to the family court as to the progress of the criminal investigation and the prospect of charge and/or criminal trial. It is not primarily a meeting to provide to the police information about the family proceedings and I suggest that the parties must agree prior to this meeting what the police are to know about the family proceedings. This meeting should be authorised by the court as part of the directions at the case management hearing. If that meeting is unnecessary because full police disclosure has taken place, it can be cancelled with the agreement of the other parties to the proceedings. The meeting should be recorded in the interests of transparency.

[54]Ideally, such a meeting should involve all the parties to the proceedings, but I recognise that those advocates who are publicly funded will be unable to claim payment to attend. In those circumstances, the safeguards I have proposed – such as agreement as to what can be said to the police about the family proceedings and recording the meeting so as not to compromise the advocates acting for the local authority – should be adequate to ensure that the process of police disclosure remains fair and transparent. It follows that, in preparing for this meeting, the local authority should be mindful of its duties to ensure that full disclosure of relevant material takes place even if it considers that a particular piece of evidence requested on behalf of a parent is of little evidential value. It should come to the meeting having read and considered what has already been disclosed and having identified any anomalies or problems in the police disclosure.

[55]At the IRH or directions hearing before a fact-finding hearing, the police – via the suitable senior officer – should provide to the court a signed declaration that the court’s order for disclosure has been complied with.

CONCLUSION

[56]These are all suggestions, capable of implementation immediately without undermining the operation of the national Protocol. In particular, I highlight the suggested meeting between the local authority and the police as set out in paragraphs 52-53 and the advice given to local authorities and the police in paragraph 46. I hope this judgment has demonstrated beyond doubt why these suggestions are of value.

[57]That is my decision.