The Court of Appeal has rejected a father's appeal against an order for the disclosure of certain documents filed in childcare proceedings.
Her Honour Judge Redgrave’s decision in December 2019 to order the disclosure of the documents came after a lengthy finding of fact hearing which found that a 9-week-old baby (baby J) had sustained brain injuries which left him “very severely disabled" with the possible perpetrators being the mother or the father.
The fact-finding judgment was handed down on 25 November 2019. HHJ Redgrave ordered that the judgment should be disclosed to the police in the normal way pursuant to PD12G 2.1 Family Proceedings Rules 2010. This rule permits a judgment in care proceedings to be disclosed to the police “for the purpose of a criminal investigation”.
At a hearing on 20 December 2019 agreement was reached that disclosure should be ordered in relation to documents in Schedule A to the judge’s order.
However, agreement could not be reached between the advocates concerning the disclosure of documents referred to in Schedule B of HHJ Redgrave’s order. These included two statements each from the mother and the father, plus a Public Law Outline Case Analysis (Summary of Parents Account only).
The statements, which detailed the circumstances which the parents said lead to J sustaining his injuries, did not contain any admissions by either the mother or the father.
It was accepted by the father that the documents would be relevant to the police's investigation as to whether criminal charges should be brought against either him or the mother in relation to J's injuries.
As part of a substantive case management hearing on 20 December 2019, the judge gave a brief ex tempore judgment allowing disclosure of the documents in Schedule B.
The court had been taken to the guidance in Re C (A Minor) (Care Proceedings: Disclosure)  2 WLR 322 sub nom Re EC (Disclosure of Material)  2 FLR 725 (The Re EC Checklist) which lays out a checklist designed to be applied by judges when considering an application to disclose evidence which had been filed in care proceedings.
The parties, and therefore the judge, were unaware that the Court of Appeal had some months earlier in Re M (Children)  EWCA Civ 1364 (Re M) considered whether - 23 years after it had been decided - Re C remained "fit for purpose".
In Re M Sir Andrew Mcfarlane, President of the Family Division, said: “The acknowledged and longstanding authority on the approach to be adopted by a court when determining an issue of disclosure of documents from family proceedings to the police is the decision of this court in Re C."
Sir Andrew set out the 10 factors on the Re EC checklist (see paragraph 29 of Re M). He continued: “Despite the passage of over twenty years all counsel in the present appeal accepted that Swinton Thomas LJ's distillation of the relevant law in Re C has continued to be the leading authority to which all levels of the Family Court regularly turn when determining applications for disclosure of material to the police.”
The Family President wholly endorsed the continuing role of the Re EC factors.
In A (Children), Re  EWCA Civ 448 Lady Justice King said that Re EC remained good law and it was implicit that the Court of Appeal in Re M had rejected the submission that the bar for disclosure was set too low by Re EC.
However, HHJ Redgrave, having given judgment and ignorant of the President’s recent endorsement of the Re EC checklist, had granted permission to appeal her order for disclosure on the basis that "there are real prospects of success in arguing that there was an error of law made by the court".
Lady Justice King said: “In my view, had the judge had the benefit of the President's judgment in Re M, it is most unlikely that she would have granted permission to appeal.”
The appeal to the Court of Appeal was brought on the following grounds:
1. The learned judge erred in law when she approached the issue of confidentiality of the evidence filed in the care proceedings on the narrow basis of confidentiality of the child's identity, rather than on the wider basis of the confidentiality that arises from care proceedings heard in private.
2. The learned judge erred in law when she treated as identical, or broadly identical, the public interest considerations which arise in respect of:
- Disclosure of material from police investigations into private care proceedings; and
- Disclosure from care proceedings held in private into police investigations.
3. The learned judge appears to have conflated arguments that disclosure would compromise the parent's right against self-incrimination with whether or not s98(2) CA 1989 confers a right to silence.
On ground 1, Lady Justice King said: “In an ex tempore judgment such as this, it is of particular importance to look at the judgment as a whole in order to see if the judge, in fact, limited her consideration of confidentiality in the way Mr Miller [counsel for the father] asserts. In my judgment, she did not.
“The judge said….that on the facts of the case before her, the issue of confidentiality was ‘more apparent than real’. That was an unsurprising comment given that there had already been considerable disclosure both as provided by the Annex A disclosure and in the detailed analysis identified by the judge in her judgment of the significant inconsistencies in the accounts given by the parents as to just how J came to suffer such terrible head injuries whilst in their care.”
The Court of Appeal judge said it was “clear from a reading of the judgment as a whole that the judge had in mind the important and broad concept of confidentiality when deciding to disclose the documents in question”.
The second ground was also dismissed by Lady Justice King.
The Court of Appeal judge said that HHJ Redgrave did not conflate the two directions of disclosure (police to Family Court and Family Court to police), “rather she simply noted that applications for disclosure are mostly made in relation to police disclosure and are informed by the police's perceived reluctance to disclose ‘really important documentation’.
“She noted that it is not usually the case that 'people object to this kind (Family Court to police) of information being disclosed'. Confirmation that she was applying the correct test is seen within her specific application of each of the factors in Re EC.”
In the third ground of appeal counsel for the father submitted that HHJ Redgrave conflated the s98(2) right to avoid self-incrimination with the criminal right to silence and as a consequence, failed to put the matter (right against self-incrimination) properly into the balance.
The father’s counsel submitted that the documents in this case fell into a middle ground being neither incriminating nor valueless. He submitted that in such cases the court should be particularly careful not to allow disclosure by default.
However, Lady Justice King said that in her judgment there was "no need to add such a gloss to the checklist in Re EC. Factor 7 of the checklist specifically requires the court to take into account: ‘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’. The judge did precisely that in my judgment, she considered the gravity of the offence and the relevance of the evidence in relation to it.”
In conclusion, Lady Justice King said that she did not agree that the judge made errors of law in respect of any of the three matters identified by counsel to the father.
She added: “In respect of the present case I would wish to highlight the approach of Swinton Thomas LJ in Re EC itself where he said that it is impossible to place any of the factors in any order of importance and that the importance of the factors will vary from case to case.”
The Court of Appeal judge said: “J has sustained devastating brain injuries at the hand of one of his parents. The police are rightly investigating the case. As the judge identified, there is little confidentiality to lose in circumstances where the police have already received the detailed finding of fact judgment together with all the medical and other evidence.
“What is left is the parent's inconsistent accounts, whether through their own statements or made orally to the Guardian. It is accepted that they are relevant to the police investigation even though they cannot be used as evidence. In my judgment, on any proper application of the Re EC checklist, an order for disclosure was inevitable.”
Lord Justice Holroyde and Lord Justice McCombe agreed and the appeal was therefore dismissed.