Updated Protocol for Police Disclosure in the Family Court
Kate Fenwick provides a summary of the updated Protocol for Police Disclosure in the Family Court.
On 01 March 2024 the Disclosure of Information between Family and Criminal Agencies and Jurisdictions: 2024 Protocol came into effect. It replaces the 2013 Protocol and Good Practice model, and related ‘Annex H’ order template that we are all very used to seeing (and drafting!!)
The protocol and annexes are essential reading for both public law and private law children practitioners. They relate to all public and private law proceedings, and include public law proceedings that have not yet been issued.
The protocol is in three parts:
- Part A: disclosure from the police to family proceedings
- Part B: disclosure sought by an investigator
- Part C: linked directions hearings
It includes the following annexes:
- Annex 1: the form to be used for applications for police material by local authorities and solicitors, other than by litigants in person
- Annex 2: guidance notes
- Annex 3: guidance notes for local authorities for completing Annex 1 in contemplated and ongoing public law proceedings
- Annex 4: a checklist for the judiciary when considering disclosure required from the police
- Annex 5: the standard order to be sought from the court for police material, for litigants in person and solicitors involved in private law proceedings
- Annex 6: the form to be used for applications made by the police for material
If you are short on time, Part A (and the associated annexes) are likely to be most frequently utilised by practitioners.
Under the 2013 protocol, completion of an Annex H order directed to the police requiring disclosure (often of a wide range of documents) within 28 days is a standard component of a first Case Management Hearing.
Under the 2024 protocol it is now intended that this material be requested of the police by the local authority using the Annex 1 form, and following the guidance in Annexes 2-4. It is incumbent on local authorities to review any police material already in its possession (such as that secured during child protection processes, MARAC or strategy meetings), which will enable a more focused request for disclosure. In circumstances where there is already police material available, the first step will be to seek permission from the police to disclose those documents to the parties and the court.
The guidance to local authorities set out at Annex 3 makes it clear that requests must be limited to material that is directly relevant and necessary. It is clearly the intention of the new protocol to move away from blanket requests for disclosure towards focused and proportionate requests.
Annex 2 gives guidance in respect of data from electronic devices (mobile phones, tablets, laptops etc.). The starting point is that there should be no objection to the provision of this material, but with the caveat that forensic analysis of mobile data is not always classified as a priority in a criminal investigation. If such data is sought, the police will be assisted to expedite its provision by ensuring the request is focused (examples of the sort of information that will assist are given – such as date parameters, specific devices etc.).
A useful list of police terminology is given at the end of Annex 2 and 3, together with an example summary report, which will assist practitioners to interpret police disclosure once received.
The judicial guidance in Annex 4 makes it clear that the date of the Annex 1 request (or a date that it is intended to be made by) should be recorded on the face of the first Case Management Order. Further, Annex 4 includes sample directions relating to digital disclosure, and non-compliance with an Annex 1 request within the prescribed 20-day timeframe. It also addresses the position in relation to indecent images.
It appears likely that regular completion of orders for wide ranging police disclosure will become a thing of the past, and instead, in public law proceedings, disclosure and information will generally be sought by the local authority either prior to, or shortly after issuing proceedings. Orders from the court will however become necessary in instances of non-compliance, or when access to indecent images (rather than a description) is considered necessary.
In private law proceedings, particularly where a fact-finding hearing is being contemplated, police disclosure may be required. In such circumstances, the court will direct the parties to complete the Annex 1 form, which must be submitted to the police together with an order in the form prescribed in Annex 5. This form is also to be used by litigants in person. Litigants in person should be directed towards the guidance set out in Annex 2, to assist them to complete the Annex 1 request form.
Kate Fenwick is a barrister at Trinity Chambers.
