IN A COUNTY COURT
Date: Tuesday, 29th October 2013.

Before:

MRS JUSTICE PARKER
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M
Applicant
-   v   -

F
Respondent
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Counsel  appeared on behalf of the Applicant.

Counsel  appeared on behalf of the Respondent.

Counsel  appeared on behalf of the Children by their Guardian.

Approved by the Judge on 31 January 2014
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JUDGMENT

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 [or, in the Court of Protection the incapacitated person] and members of their [or his/her] 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.

MRS JUSTICE PARKER:  

1	These are Private Law proceedings in respect of three children.  The mother makes allegations of physical abuse on the children in respect of the children and domestic abuse of herself which the father denies.   The evidence, of which there is already quite a large amount, is in some respects importantly conflicting, and the task of unravelling where the truth lies will be a difficult one.  There has been police involvement and the children have been interviewed.  Allegations have been made, the veracity of which will need detailed analysis by reference to other material before me.  

2	I heard an application in this matter on 7th May 2013 at the County Court.  Amongst other orders I ordered the Police to disclose to the solicitors for the Applicant mother copies of the statements and interviews including any video interviews and transcripts of interviews with the mother, the father and the three children.  At that point there had been an ABE interview of the oldest child; a pre-interview with the middle child and no interview with the youngest child.  I also ordered disclosure of other documents and gave permission to the police to apply to vary or discharge the order on 48 hours’ notice to the parties.

3	The matter came before the Designated Family Judge (the ‘DFJ’) on 1st August 2013.  The detective constable who is in charge of the investigation attended.  According to the transcript which I have seen of the DFJ’s judgment she assured him that all investigations would be complete by mid-September and it was thus recorded in the order.  The investigation is not complete and the order has not been complied with.  I need not go into the detail of the correspondence between the parties’ solicitors and the police.  This matter is listed before me now sitting for a 3-day fact finding hearing.  Since my order but prior to the DFJ’s order the two younger children have been formally ABE interviewed.  There can be no real dispute that the police knew or certainly ought to have known that that material also was covered by the order.  The DFJ was told, I understand, at the hearing before him on 1st August that no one was in a position to disclose precisely what allegations the two younger children had made.  

4	I started hearing this case yesterday, 28th October 2013.  The last letter is dated 25th October 2013, i.e. last Friday.  It comes from the Senior Information Officer Data Protection and Freedom of Information of the Police Force, written from the Headquarters.  He said: 

	‘Given the ongoing nature of both investigations (i.e. the allegations made by the children and those made by the mother) [the Police Authority] is not in a position to assist the court with disclosure of material from … at this point in time.’  

	The writer then took a point, which has not been taken before me, as to whether the disclosure of the June ABE interviews was covered by the order.  When this matter commenced before me yesterday morning it was quite apparent that I could not proceed to determine fact finding or embark upon it in the absence of this essential disclosure.  At my initiative I made an order directed to the Chief Constable to attend before me either yesterday afternoon or this morning together with an officer in the case and all the relevant documentation, represented if he so wished, and I referred to the possibility or perhaps prospect of a costs order being made.  The Chief Constable in fact is away so I varied the order to refer to an Assistant Chief Constable and I am very glad to have had before me the solicitor for the Police Authority, the Assistant Chief Constable; and the Detective Inspector who is conducting the investigation.  

5	We lost time yesterday morning, partly because of adverse weather conditions, and partly because of the necessity to try to sort out disclosure.  I am also considering various interim issues which have arisen with which I need not deal for the purposes of this judgment.  When the hearing commenced this morning the solicitor, for the Police Authority, acknowledged that the Police were at fault in not having brought the matter back to court. Indeed it is as simple as that.  I do however take the view – and I have warned counsel that this is my view – that there was also a responsibility on the part of the legal representatives to make an application before the DFJ last week or the week before in order to ensure either that the material would be before the court or that there was a clear understanding as to why it could not be.  The obstruction of the fact finding hearing was entirely foreseeable.  In fact as matters have transpired, notwithstanding that they are months off delivery of the papers and material produced by investigation, which is not yet complete, to the CPS for a charging decision, the Police have proffered to the court today the DVDs of the interviews (which have not yet been transcribed – apparently that is not done before charge) and most of the material which has been requested, apart from some diary notes of the mother which may not be complete.  That reinforces my view based on experience that if the police do come to court to air their concerns about disclosure the problems can very usually be resolved by discussion, if not completely then substantially.  It is however far too late, with over four hours of untranscribed DVDs upon which instructions will need to be taken, for this trial to be effective.

6	The President has recently reinforced the message, which ought to be well-known to all, that court orders have to be obeyed, whether the subject of that order likes the order or not.  This is so whether the person affected by the order thinks that it has been made on good grounds or not and even if there may be a dispute as to jurisdiction.  The solicitor for the Police authority recognises that.  There is shortly to be a new National Protocol regulating the way in which disclosure applications are to be managed by the court, it stipulates of course the necessity for compliance.  I am sure that that will improve the way in which the court can determine these applications, but it does require both the police and the legal profession to be alert to the necessity of putting the issues before the court.  If the police have legitimate reasons for wishing to withhold documentation, their reasons will probably be respected, but perhaps not always, particularly if there has been delay in decision-making, and depending upon the importance of disclosure for the children.  I am assured that the Police Authority now understands the message that I am delivering today and will put in place procedures to make sure that no instance like this ever occurs again in this county in a family case at any level.  I shall publish this judgment in order to illustrate and demonstrate that this must be a national message as well as a local message.

7.	Costs consequences follow this failure, as the Police recognise.  I have done my best to form a fair view as to what costs arise as a result of this default.  I think it is fair to say that costs arise in respect of yesterday and today because tomorrow I will consider interim issues.  I regard, as I have said, the legal representatives of the parties including the guardian’s legal representative also as responsible.  These children have been separately represented by a Rule 16.4 guardian since August and solicitors have been actively involved since 6th September.  I could regard the legal representatives as all equally liable.  It would not be fair in this case to fix the police with sole responsibility for the wasted costs.  But I see no real advantage in having a separate wasted costs hearing in respect of the responsibility of the legal advisers. Responsibility and its attribution would no doubt be the subject of considerable argument particularly as there has been argument on the substantive issues and the facts and some important material viewed.  Thus part of these two days has been utilised for the substantive dispute.  A wasted costs hearing would probably take up more court time than the exercise is worth.
  
8.	I order that the police should pay one-half of the costs of the legal representatives attributable to the first day of the trial and today.  I shall also require them to pay the costs of the transcript of this judgment which will, as I say, be published.  The cost in terms of the effect on these parents for whom this litigation is distressing and burdensome, and on the children, who require a decision, cannot unfortunately be met by any form of monetary compensation.  I do reiterate that there really does need to be some joined-up thinking in this as in every case.

Postscript

9.	I have since given judgment in London in open court on the fact-finding which has been reported in the press and will be transcribed and placed on BAILII.  There is a risk that disclosure of the name of the police force will lead to a risk of identification.  For that reason and that reason only, they will remain anonymous.  They, and the legal representatives, whose identity may also give rise to identification of location, know who they are.

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