England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 February 2008 Postscript 31 March 2008

Mr Justice Munby :


 


1. On 29 June 2007 I handed down a previous judgment in this matter: Re X (Children) [2007] EWHC 1719 (Fam). That judgment dealt in part with certain disclosure issues which had arisen in the context of care proceedings in respect of four children, A, B, C and D. The father of the children was Mr X (who I will again refer to as "the Defendant"). He and his wife, Mrs X, are now divorced.
2. Further disclosure issues have now arisen in the same proceedings.

The background

3. The background is to be found summarised in paragraphs [3]-[9] of my previous judgment. I need not repeat here what I said on that occasion. But I should elaborate the somewhat obscure reference in paragraph [8] to certain very serious offences.
4. I should explain that B was born in January 1992. D, who was born in August 2006, is her child. So B was only 14½ when D was born and only 13 when D was conceived. Furthermore, D's father is B's own father, the Defendant. So D was the result of father/daughter incest.
5. On 30 May 2007 the Defendant was arrested and charged with incest, specifically, and following the relevant statutory language, that between January 2004 and December 2005 he had penetrated B's vagina with his penis contrary to sections 25(1) and (6) of the Sexual Offences Act 2003. Since, as I have said, B was born in January 1992, the offence charged covered the period when she was 12 and 13 years old. The Defendant appeared at the Magistrates' Court in November 2007 charged with a single offence under section 25 of the Sexual Offences Act 2003. He was remanded to appear before the Crown Court later that month.
6. Also in November 2007 I began the final hearing of the care proceedings in respect of A, B and C. The proceedings in respect of D had already come to an end (see Re X (Children) [2007] EWHC 1719 (Fam) at para [75]). Counsel for the local authority and counsel for Mrs X produced an agreed threshold criteria document (see section 31(2) of the Children Act 1989). The Defendant was invited to agree this document. He declined to do so. Instead he signed a document making certain limited admissions. That document is set out in Part 2 of the Schedule to the order referred to in paragraph [82] below.
7. During the course of the hearing somewhat Delphic references were made by the local authority's counsel to certain disclosures that had very recently been made by B. In due course I was shown two documents. The question then arose as to whether these documents – what became known for the remainder of the hearing as 'the Delphic material' – should be disclosed to the Defendant and his legal advisers. His counsel submitted that they should; counsel for the local authority and counsel for Mrs X took the lead in submitting that they should not. Having heard argument, in particular as to the proper application in the circumstances of the principles in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, I ruled that the contents of the documents were not to be revealed either to the Defendant or to his advisers.
8. Not least in the light of the Delphic material, neither counsel for the local authority nor counsel for Mrs X was prepared to accept the Defendant's limited admissions as correctly summarising the true extent of his abuse of B. They submitted that he should be required to give oral evidence. Pointing to the decision of the Court of Appeal in Re Y and K (Split Hearing: Evidence) [2003] EWCA Civ 669, [2003] 2 FLR 273, they correctly submitted that the Defendant was a compellable witness, that he had no right to refuse to give evidence and that by virtue of section 98(1) of the Children Act 1989 he could not even refuse to answer questions which might incriminate him.
9. At this point the Defendant sought permission to withdraw from the proceedings and indicated that he was not prepared to give evidence. I refused his application for permission to withdraw and, despite protest from his counsel, who understandably declined to call him as a witness, ruled that he should give evidence. I observed that even if he had the right to refuse to answer a question on the grounds of some privilege that was no answer to his obligation to enter the witness box and be sworn (or affirmed); any claim to privilege could and should be taken after he was sworn and by way of objection to some specific question. I made it clear to the Defendant, in his presence and hearing, that I was making an order that he go into the witness box and be sworn and that if he refused to do so he would be guilty of contempt of court for which he could be both fined and imprisoned.
10. The Defendant gave evidence on 29 and 30 November 2007. At no time was any claim to privilege made by him or on his behalf. He was cross-examined first by counsel for the local authority and then by counsel for Mrs X. There is a transcript of his evidence. In large measure it speaks for itself but I need to fill out the picture in two respects.
11. Mrs X steeled herself to sit in court throughout the Defendant's evidence. It was, very obviously, and as one would expect, a harrowing experience for her. She sat there weeping, desperately wanting to know what had happened to her child. She listened largely in vain, for the Defendant's evidence, as can be seen from the transcript, was very far indeed from being frank. It was in fact, as I find, very far indeed from being the truth either.
12. The other matter is this. There is reference on page 15 of the transcript to something the Defendant wrote down. The note reads as follows:

"I was impotent. I had trouble siring 3 children. I though [sic] I had fertility problems."

As to this I observe only that the Defendant was plainly not impotent, for there is no suggestion anywhere in his evidence or elsewhere that he did not achieve full penetration on each of the seven occasions on which he admits having had sexual intercourse with B. And the fertility problems to which he alludes did not prevent him fathering D, a baby who is indubitably proved by DNA tests to have been his child.

13. I interpolate at this point some dates which need to be borne in mind when considering the Defendant's evidence and the questions he was being asked. B was removed from school in early April 2004, just before the Easter holidays, when she was just 12 years old. Thereafter she was educated at home. What had been planned as a family holiday in Malta, though in the event only the Defendant and B went, began in July 2004, when B was just 12½ years old. It lasted much longer than originally planned – for some eight weeks in all.
14. A recurrent theme throughout his evidence was the Defendant's professed difficulty – his embarrassment – in answering questions in court in the presence of so many people, a stance he maintained even after I had reduced the number of those in court to the absolute minimum. I was not particularly impressed with this stance, which seemed to me to be little more than a device to avoid having to face up to the realities of what he had done. But I decided to give him a final opportunity to be frank. At the end of his evidence I said this (transcript pages 27-28):

"Mr [X], there are not going to be any more questions here but, as I mentioned yesterday, this is really your final opportunity, if not forever for a very long time, to tell us what happened and I am going to give you the opportunity, if you want to help us further, of writing down anything further you want to tell us. Not here and now today but you can write it down over the course of the next few days and send it to me because more than once you have suggested there are things which you find very difficult to say and it may be that there are things you would feel able to say if you wrote them down. I am going to give you a final opportunity to add to what you have told us already by putting it in writing and you can have until the middle of next week to do that. I am spelling that out so that if there is anything further you want to tell us and you put it in writing, then I will consider it. If, on the other hand, you do not take up that opportunity then I will have to make my decisions and draw whatever inferences are appropriate, come to whatever conclusions are appropriate on the basis that you have told us nothing further beyond what you have told us today. So that you have a final opportunity over the course of the next few days, if you wish to do it, of writing it all down and sending it to me and my final decision will be based upon everything I have heard, including what you have told us in the witness box over the last two days, together with anything that you may choose to put in writing over the next few days."

The Defendant elected not to avail himself of that opportunity.

15. At the end of the hearing I approved the threshold criteria document.
16. Part 1 of that document is agreed between Mrs X and the local authority. It is, I am quite satisfied, an accurate distillation and description of what the evidence convincingly establishes.
17. I do not, out of consideration for B and the other children, propose to set out the threshold criteria document in full. The following extracts suffice to demonstrate the enormity of what the Defendant has done:

"The Defendant has sexually abused B (inter alia) by having sexual intercourse with her, resulting in the birth of D. The Defendant has probably sexually abused B in other ways but, because of his lack of cooperation, it is not possible to determine the extent of the sexual abuse perpetrated upon B.

B suffered physical abuse as a result of sexual abuse by the Defendant and is at risk of further physical harm as a result of a pregnancy at aged 13.

The Defendant admitted in oral evidence and in his written concessions that he had sexual intercourse with B on more than one occasion. Although he said that he had sexual intercourse with her a maximum of seven times, the limit of seven occasions is not accepted by the local authority and Mrs X. The Defendant placed B at risk of pregnancy each time he had sexual intercourse with her by failing to take any precautions against pregnancy.

The Defendant has emotionally abused B by grooming her for sexual abuse in a manner and over a period which remain unknown, by sexually abusing her in ways and over a period which remain unknown and by bringing about a situation, by methods which remain unknown, whereby B did not disclose the sexual abuse by her father to anyone.

By his ongoing silence on the issue of his sexual abuse of B, the Defendant has prevented and continues to prevent the proper management, support and therapy in respect of the sexual and emotional abuse of B which she so desperately needs, thereby causing her further and continuing emotional harm.

The extent of B's emotional abuse at the hands of the Defendant remains unquantifiable. However, it includes sexual abuse, pregnancy at aged 13, the birth of D, the loss of D to adoption and the knowledge that she may never see D again. These matters will have a damaging effect on B for the remainder of her life. That effect is particularly profound because of B's severe autistic spectrum disorder, of which the Defendant was and is fully aware.

…

The Defendant's lack of acknowledgment of responsibility and lack of any expression of contrition for the emotional abuse and devastation of the lives of all three children and, additionally, the sexual and physical abuse of B has caused further and continuing emotional harm to all three children.

There is a continuing risk of sexual harm to B in the future as a result of the Defendant's refusal to give any information whatsoever about his sexual abuse of B with the result that there is no knowledge or understanding of the triggers for sexual abuse or the methods he used to control B or to maintain her longstanding silence.

…

The Defendant took the lead role in keeping B out of school and socially isolating her, thereby subjecting her to harm. As a result of his control of her, Mrs X acquiesced in this state of affairs. It is unknown whether the Defendant did so in order to abuse B sexually, to isolate her and make her even more dependent upon him, to prevent the risk of discovery of his sexual abuse of his young daughter, for all these reasons or for these and/or other reasons which are not apparent."

18. Part 2 of the threshold criteria document, which sets out the Defendant's admissions, is accurate so far as it goes, at least as to the substance if not the detail. But it is far from being either frank or truthful.
19. The simple fact, as I find, is that the Defendant's admissions and evidence, so far as they go, may be the truth; but they are certainly not the truth, the whole truth and nothing but the truth. His evidence was a tissue of prevarication and obfuscation. He was not trying to assist the court. More seriously, and a damning commentary on his utter failure as a father, it is quite clear that even at that stage he was selfishly putting his own interests ahead of the pressing interests of his own daughter.
20. The threshold criteria document is a damning indictment of the Defendant, vividly demonstrating the extent of his corruption and perverting of his daughter and of all the damage he has done, not merely to her but to his other children and to Mrs X. But I strongly suspect that the true picture is even worse than the Defendant has been willing to admit.
21. I did not believe the Defendant's account of how and when he seduced and first had sexual intercourse with B. I did not believe his account of what had happened in Malta. I did not believe his assertion that sexual intercourse had occurred on no more than seven occasions. On the basis of his own evidence I strongly suspect that he was having sexual intercourse with B in Malta when she was only 12½ years old, just as I strongly suspect that he had sexual intercourse with her – full penetrative vaginal intercourse with her – on significantly more than the seven occasions to which he admits. I strongly suspect that the reason he removed her from school was connected with his sexual abuse of her.
22. It will be noticed that I have used the language of suspicion. That is quite deliberate. The facts as set out in the threshold criteria document I find proved to the exacting standard described and defined by Lord Nicholls of Birkenhead in In re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at page 586. But those matters where I have referred to my suspicions are matters which, on the evidence I have heard, I cannot find proved to that exacting standard. However, my suspicions remain – and they are strong suspicions founded in large part on the Defendant's own prevarications and lies.

The applications

23. On 12 December 2007 Mrs X's solicitors made an application seeking leave to include extracts from the Defendants' evidence in Mrs X's victim impact statement to be put before the Crown Court. I directed that this application was to be listed on 19 December 2007 for directions.
24. On 14 December 2007 the local authority issued an application seeking leave to disclose (i) the transcript of the evidence given by the Defendant on 29 and 30 November 2007 to the police, (ii) certain specified documents to the Criminal Injuries Compensation Authority in support of the local authority's application on B's behalf for criminal injuries compensation and (iii) the case papers relating to B to the local authority's adult services. I directed that this application also was to be listed before me for directions on 19 December 2007.
25. In accordance with those directions, on 19 December 2007 I heard the two applications by Mrs X and by the local authority for disclosure. Matters were left that I would hear the applications at a hearing by video link timed to ensure that the applications had been dealt with before the date of the Defendant's appearance in the Crown Court. I indicated that I would expect skeleton arguments from those who wished to participate and left it to the parties to reach agreement on a suitable timetable and form of order. My confidence that the parties would have no difficulty in doing this was not displaced. I was told on 21 December 2007 that the Defendant's next hearing in the Crown Court was on 25 January 2008 and the parties agreed that the video link hearing could take place on 23 January 2008.

The hearing

26. The hearing of the applications took place by video link on 23 January 2008. The local authority, Mrs X, the Defendant and B were all represented by counsel, each of whom had lodged a most helpful skeleton argument. I heard oral submissions. At the end of the hearing I announced that I would be making the two orders the material parts of which are set out in paragraphs [82] and [83] below.
27. I now (13 February 2008) hand down judgment explaining why I made those two orders.

The issues

28. Three different categories of disclosure are sought. As refined and elaborated in the skeleton arguments submitted by counsel for Mrs X and counsel for the local authority, the following disclosure is sought:

i) First, disclosure of certain materials for use in or in connection with the criminal proceedings against the Defendant. The local authority seeks permission to disclose the transcript of his evidence to the Crown Prosecution Service and to the police. Mrs X seeks permission (a) to quote in her victim impact statement from the transcript of the Defendant's evidence, (b) to refer to matters which arose in the family proceedings and which are relevant to the impact on the family of the Defendant's sexual abuse of B, and (c) to disclose as part of her victim impact statement those parts of the threshold criteria document which are directly relevant to the Defendant's actions together with a statement that I have ruled in the family proceedings that that document accurately sets out the harm suffered by the children as a result of the Defendant's actions.

ii) Second, the disclosure of certain specified documents to the Criminal Injuries Compensation Authority in support of the local authority's application on B's behalf for criminal injuries compensation.

iii) Third, disclosure of the case papers relating to B to the local authority's adult services.

The Defendant opposes the applications under (i) and (iii) and submits that the disclosure sought under (ii) is too wide. His counsel submits that in what she calls this "sensitive case" disclosure should be limited to what is "absolutely necessary".

29. I shall deal with each of the applications in turn. First, however, I must identify the relevant legal framework.

The legal framework

30. I can do this quite briefly because it is, in large measure, sufficiently set out for present purposes in my judgment in Re X (Children) [2007] EWHC 1719 (Fam).
31. The general principles relating to the disclosure of material from family proceedings sufficiently appear from my judgment in Re X (Children) [2007] EWHC 1719 (Fam) (see at paras [21]-[24] and [28]-[39]). I need say no more than to draw attention (see Re X (Children) [2007] EWHC 1719 (Fam) at para [35]) to "the public interest in ensuring, so far as possible (and … without unnecessary let or hindrance by the family court), that the … guilty are rightly convicted and appropriately sentenced" and to emphasise the point I made at para [37]:

"as counsel for the CPS points out, referring to what I said in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, at para [13], "the children, precisely because they are the [Defendant's] children, themselves have a direct and important interest in ensuring that there is no miscarriage of justice in the criminal trial and in ensuring that the truth, whatever it may be, comes out." I went on: "In this as in other respects, better for the children that the truth, whatever it may be, comes out." In the present case, as counsel for the CPS correctly observes, and the point was picked up and adopted by counsel for Mrs X, it is important for the future welfare of the children that the Defendant is dealt with for his crime in the most appropriate manner and on the basis of an accurate rather than a distorted view of the relevant facts. So the children themselves have an interest in there being proper disclosure. As counsel for Mrs X pithily observed, it is in the interests of the children that the Defendant receives a fair and just sentence. I agree."

32. It must also be borne in mind (see In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 at page 85 and Re X (Children) [2007] EWHC 1719 (Fam) at para [43]) that it is important in this kind of situation that the family court and the Crown Court work together in co-operation to achieve the proper administration of justice in the latter jurisdiction.
33. These principles have to be applied against the background of the statutory scheme embodied in section 98 of the Children Act 1989. The essential balance struck by the statutory scheme is made plain by a comparison of section 98(1) and section 98(2). Section 98(1) provides that:

"In any proceedings in which a court is hearing an application for an order under Part IV [of the Act], no person shall be excused from –

(a) giving evidence on any matter; 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 or civil partner of an offence."

Section 98(2) provides that:

"A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury."

34. As I have said, the decision of the Court of Appeal in Re Y and K (Split Hearing: Evidence) [2003] EWCA Civ 669, [2003] 2 FLR 273, makes clear that the Defendant was a compellable witness, that he had no right to refuse to give evidence and that by virtue of section 98(1) he could not even refuse to answer questions which might incriminate him.
35. On the other hand, although section 98(2) shows that that the evidence he gave in the family proceedings cannot be used against the Defendant "in evidence", this does not altogether preclude its use in connection with criminal proceedings. As I said in Re X (Children) [2007] EWHC 1719 (Fam) at paras [49]-[50]:

"[49] In the first place, section 98(2) gives protection only against the use of such statement or admission "in evidence." It does not, for example, protect against use in a police inquiry into the commission of an offence: see In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 at page 85 …

[50] Secondly, it is to be noted that putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility does not amount to using those statements "against" him within the meaning of the section: Kent County Council v K [1994] 1 WLR 912 at page 916 followed in Re L (Care: Confidentiality) [1999] 1 FLR 165 at page 167."

The second of these two points is of particular significance in the present case.

Disclosure – the Crown Court proceedings

36. I propose to deal first with Mrs X's application, for it is more wide-ranging than the local authority's application and it is supported by what, if I may say so, is a remarkably powerful and compelling skeleton argument prepared by Mrs X's counsel.
37. Mrs X says that she has been asked to complete a victim impact statement. Not only does she wish to do so, she is very strongly of the view that it is her duty to do so. As her counsel points out, the Crown Court has asked Mrs X to complete a victim impact statement for a reason. It wishes to be full appraised of the impact of the Defendant's actions on his victims, his victims being of course B, the other children and Mrs X herself. Her counsel submits that the victim impact statement will properly be taken into account by the judge in passing a just and appropriate sentence and that in order to complete her statement properly and comprehensively Mrs X needs the disclosure which she seeks.
38. Counsel submits that the Defendant's sexual abuse of B is the very nub of the care proceedings which have involved this family for two years. The impact of the Defendant's sexual abuse of B, which only became known at a relatively late point in the proceedings, has devastated the family. Its consequences are likely to have a detrimental effect for many years to come on Mrs X and the children, particularly B, all of whom are entirely innocent.
39. Counsel further submits that it is in the interests of the children that the Defendant receives a fair and just sentence for his sexual abuse of B (see Re X (Children) [2007] EWHC 1719 (Fam) at para [37]) and that there is a very real danger that the sentencing court will not have sufficient information to pass a fair and just sentence unless Mrs X is allowed to appraise the criminal court of the true impact of the Defendant's sexual abuse of B on the family. The argument is favour of disclosure is even stronger in the present criminal proceedings, it is said, than in the previous criminal proceedings.
40. Mrs X says that, from the point of view of the welfare of the children, it is now of particular importance that the criminal court is appraised of the true circumstances of the Defendant's criminality for the following reasons:

i) B has been and remains reluctant to discuss the circumstances of the Defendant's sexual abuse. She has profound difficulties which significantly hamper the professionals in ascertaining the reasons for her reluctance. However, it is highly likely that she is shouldering some of the responsibility for the Defendant's sexual abuse.

ii) A has expressed both to his social worker and to his guardian that the reason for the Defendant's sexual abuse of B was the Defendant's mental health difficulties and/or his alcohol abuse. A appears, wrongly, to see the Defendant as a victim as opposed to a perpetrator.

iii) The Defendant has admitted that he had sexual intercourse with B on more than one occasion. He admitted "not more than seven times", although it is not accepted by either the local authority or Mrs X that the incidence of sexual intercourse was so limited.

It is therefore very important that the criminal court, so far as possible, sends out the message loudly and clearly that what the Defendant has done to B is very wrong, that he alone bears responsibility for what he has done and that he should be punished.

41. The Defendant has already made known his intention to plead guilty to the offence with which he is charged, though, as counsel pointed out, he has little choice but to plead guilty since the DNA results prove conclusively that he has had sexual intercourse with B on at least one occasion.
42. It is highly likely that, together with a guilty plea and in mitigation, the Defendant will express remorse and shame for what he has done to B. He is unlikely to give any evidence in the criminal proceedings and is, therefore, unlikely to be challenged. He expressed remorse and shame in the family proceedings (see the document containing the limited admissions to which I referred in paragraph [6] above). Counsel submits that the Defendant's admission and expression of remorse amount to no more than "crocodile tears" in an attempt to save his own skin and that they give a very false view of his true feelings. Indeed, far from being ashamed for what he had done, he said in his oral evidence that he had only realised "very recently" that his sexual abuse of B was wrong and that the reason he kept quiet about it was that he had "cheated on" Mrs X. Counsel submits that unless the judge in the criminal proceedings is aware of what the Defendant has actually said on the matter, there is a very real risk that any expression of remorse coupled with a guilty plea may be taken at face value and credit given where none is due.
43. Furthermore, as counsel points out, the Defendant declined to give any information which would assist either the court or those working with the children in reaching any understanding of what B actually endured at his hands. In the full knowledge that this information was required in order that B could be assisted in therapy, the Defendant nevertheless wilfully refused to give any information, preferring to serve his own interests rather than help his daughter.
44. Counsel also reminds me of the way in which the Defendant has conducted himself throughout these proceedings, particularly during the hearing in November 2007. First, he made an unsuccessful application to be discharged as a respondent and then he declined to give evidence and had to be ordered to do so. He sought, counsel says, to wash his hands of any responsibility for the circumstances in which his children, who are entirely innocent, find themselves.
45. In conclusion counsel submits that the impact of the Defendant's sexual abuse of B is significant, far reaching and permanent and is not properly reflected in the charge for which he appears before the criminal court. The true impact of his actions is properly reflected in the threshold criteria document which has been agreed between the local authority and Mrs X. It is for these reasons, in the interests of justice and in the interests of the welfare of the children, that Mrs X seeks the permission of the court to refer to those matters in her victim impact statement, to annex a copy of the relevant parts of the threshold criteria document to her victim impact statement and to confirm that I have accepted that that document truly and accurately sets out, so far as can be established, the harm presently proved to have been suffered by the children. Her counsel has identified those paragraphs in the threshold criteria document which she says are directly relevant to the impact of the Defendant's crimes on the victims of those crimes and which accordingly, she submits, Mrs X should be permitted to use.
46. Counsel submits that should the Defendant seek to rely on the "curtain of privacy" in the family proceedings in opposition to the applications for disclosure (see Re X (Children) [2007] EWHC 1719 (Fam) at para [33]), the court should see the argument for what it is, namely, more "sanctimonious humbug" (see Re X (Children) [2007] EWHC 1719 (Fam) at para [35]) deployed by the Defendant in a cynical effort to avoid responsibility for his actions. In any event, as she points out, the contra mundum injunction which I granted on 8 May 2007 (see Re X (Children) [2007] EWHC 1719 (Fam) at paras [17], [54]-[74]) will protect the children from adverse publicity arising out of the current proceedings in the Crown Court.
47. In sum, counsel for Mrs X submits that the disclosure she seeks is clearly justified, indeed clearly appropriate, on the basis of any proper application of the principles as I sought to summarise them in Re X (Children) [2007] EWHC 1719 (Fam).
48. The local authority adopts the same stance and for very much the same reasons.
49. Counsel for the local authority points out that the charge against the Defendant was necessarily based on the only evidence against him: the results of the DNA tests. He had, by whatever means, effectively silenced B and he chose not to answer any questions in a police interview under caution.
50. In his evidence before me the Defendant, she says, was evasive and manipulative, though he did eventually make certain admissions which demonstrate that the true gravamen of his conduct, whatever it may have been, was much more serious than a single act of intercourse. She submits that any assertion by the Defendant that he had sexual intercourse with B on only one occasion would be misleading the Crown Court; that the Crown Prosecution Service is not in full possession of the facts; and that consequently the Crown Court is not in a position to sentence on the correct basis. There must not, she says, be a miscarriage of justice in the Crown Court. By silencing B and refusing to answer questions in the police interview, there is a significant probability that the Defendant has already secured for himself the minimum possible charge, and if the truth is not revealed there is a real risk that he will obtain an over-lenient sentence which does not reflect the true extent of his criminality.
51. There is, says counsel for the local authority, a strong public interest in the family court supporting and assisting the Crown Court. The Defendant is guilty of a very serious crime indeed: corrupting and perverting his own daughter and impregnating her when she was only 13 years old. There is therefore, she submits, a compelling public interest in the Defendant not merely being prosecuted but also being properly and justly sentenced for what he has done rather than what he can get away with. It is important that the Crown Court has the benefit of Mrs X's views together with the material which backs them up.
52. Counsel points out that the privacy and confidentiality of the family proceedings will continue to be protected not merely by the contra mundum injunction I granted but also by section 12 of the Administration of Justice Act 1960, and that, not least for these reasons, the substance of that confidentiality will not be adversely affected by the disclosure which is proposed. Moreover, and very importantly, she submits, there is not going to be any significant impact upon the welfare and interests of any of the children. On the contrary, the real questions here, she suggests, are clarity, honesty and justice – and they all point, she says, in favour of my permitting the disclosure which is being sought. It is better for all the children, B in particular, that the truth comes out. It is better that the Defendant is dealt with for his crime on the basis of a more accurate rather than a distorted and self-serving version of the facts. The children, she says, have an interest in there being proper disclosure so that the Defendant can receive a fair and just sentence.
53. The Defendant, she says, is in a very weak position to pray in aid his rights under Article 8. He was or should have been under no illusions when he gave evidence that he had not been given any automatic and all-embracing protection. That indeed is perhaps one of what counsel suggests are the many reasons why he was so unwilling to be frank in the course of his evidence as to what he had done to B.
54. Counsel for the local authority acknowledges the great importance of encouraging frankness in the family court. But as she rightly observes, frankness is not a concept with which the Defendant is very familiar. He had to be compelled to give evidence against his will. The tenor of his evidence was to give away as little as possible. He was not, as counsel puts it, in the business of assisting the court or the parties, let alone his abused and defiled daughter. She submits that the family hearing was not being used as any kind of 'stalking horse' for the criminal proceedings. On the contrary, she says, the purpose of compelling him to give evidence was to assist the family court to make findings which were as comprehensive as possible, not least with a view to assisting B in the future and furthering her therapy. Had the Defendant been genuinely trying to assist the family court to find the truth against his own interests, then, she says, the situation might be different. But there was no such wish by the Defendant genuinely to assist the case. On the contrary, his objective was to save his own skin as far as possible.
55. B's children's guardian supports the applications for disclosure made by the local authority and by Mrs X. Her counsel submits on behalf of B that the arguments put forward by the local authority in support of disclosure of the transcript of the Defendant's evidence for use in the criminal proceedings are compelling. She further submits that it is important that the victim impact statement which Mrs X is to prepare for the consideration of the sentencing judge provides as realistic and complete an account of the impact of the Defendant's behaviour upon the family as possible. B's guardian therefore supports the application made by Mrs X for disclosure of material from the care proceedings to facilitate this.
56. As her counsel points out, B is central to the applications for disclosure, and although, as it happens, her guardian's position is aligned with that of the local authority and Mrs X, her own position is quite distinct, which is why, quite properly, she was separately represented before me.
57. The Defendant's counsel points to the need to preserve the privacy and confidentiality of family proceedings and prays in aid the Defendant's rights under Article 8.
58. In particular she points to the fact that the Defendant was compelled to give the evidence which is at the centre of the proposed disclosure and, moreover, in circumstances where he was threatened with the penalties of contempt if he refused. So, she says, the applications for disclosure have the effect of using the family proceedings as a platform for the criminal proceedings.
59. Moreover, she says, an application for disclosure of this kind would normally be made by the police or the Crown Prosecution Service. For the very parties who took the initiative in compelling the Defendant to give evidence, and who then cross-examined him at length, to be making the applications which are now before the court only increases the perception, she says, that the family court was indeed being used as a forum for the gathering of evidence for use in the Crown Court, rather than merely being used to get to the truth of what happened to B. Moreover, she says, it militates against the local authority's contention that the family court was not being used as a stalking horse for the Crown Court.
60. I agree, and essentially for all the reasons given by counsel for Mrs X, the local authority and B's guardian, that I should authorise the disclosure which is being sought by Mrs X and by the local authority.
61. So far as their submissions are based upon an analysis of the factual and forensic background to the applications, I accept the analyses put forward by counsel for Mrs X and counsel for the local authority as accurate, fair and balanced. The language in places is strong, but justifiably and appropriately so. So far as their submissions are founded upon an analysis of the relevant legal principles which have to be applied in the particular circumstances of this case, I find them to be of compelling force.
62. In my judgment, any proper application of the 'balancing exercise' which I described in Re X (Children) [2007] EWHC 1719 (Fam) comes down clearly – indeed heavily – in favour of disclosure. The reasons which require disclosure for the purpose of the latest criminal proceedings against the Defendant are, in very large measure, the same as those which, as I explained in Re X (Children) [2007] EWHC 1719 (Fam), justified and required disclosure for the purpose of the earlier proceedings against him. I need not repeat what I said on that occasion.
63. There is, as it seems to me, a very powerful argument indeed that the disclosure sought is needed – is necessary (using that word in the sense familiar in the Strasbourg jurisprudence) – in order to ensure that the Defendant is properly, fairly and justly sentenced for this particularly wicked crime; in particular in order to ensure that he is not able to escape his just desserts by peddling a false account in mitigation.
64. For all the reasons given by counsel there are the most compelling arguments in favour of the disclosure both of the relevant parts of the threshold criteria document and of the transcript of the Defendant's evidence.
65. Disclosure in these circumstances is not in any way inconsistent with section 98 of the Children Act 1989. Indeed, it serves to illustrate the statutory scheme working as it was intended to work. The Crown cannot use the material which is to be disclosed in order to make its case against the Defendant, for, as section 98(1) provides, it cannot be used "against" him "in evidence", but the Crown can, as permitted by Kent County Council v K [1994] 1 WLR 912 and Re L (Care: Confidentiality) [1999] 1 FLR 165, use the material to challenge any account he seeks to put forward in the Crown Court inconsistent with his evidence in the family proceedings.
66. If this material is not provided to the Crown Court there will be nothing to prevent the Defendant lying to the judge and asserting falsely that he had sexual intercourse with B on only one occasion. Why should the family court, by inactivity, facilitate such deceit? Where is the injustice in compelling the Defendant to mitigate in the Crown Court on a basis which is at least consistent with his admissions to the family court, rather than permitting him to mitigate on a basis inconsistent with those admissions?
67. The only possible argument, correctly identified by his own counsel, is that the Defendant was compelled by me to give the evidence which is now to be supplied to the Crown Court. But there are, in my judgment, two answers to this. In the first place, and as I have sought to demonstrate, the order I propose to make is entirely consistent with the statutory scheme. Secondly, however, there is the point made by counsel for the local authority. If the Defendant had engaged frankly with the family court then it might be that I would have come to a different conclusion. I am not, of course, suggesting that disclosure is a punishment for non-cooperation in circumstances where full cooperation can expect to be rewarded with non-disclosure. But the extent to which, in any particular case, someone in the Defendant's position has or has not cooperated with the family court is certainly not an irrelevant consideration. And in the present case there has been a marked absence of cooperation. Indeed, as anyone who reads the transcript of his evidence will see, the Defendant was obliged to admit the extent of his wrongdoing only because of what I am sure was an unintended slip of the tongue when he referred to the occasions (plural) on which sexual intercourse had taken place.
68. It is, as counsel for Mrs X rightly said, nothing more than "sanctimonious humbug" for the Defendant in these circumstances to be praying in aid as an answer to disclosure either the need for privacy and confidentiality or the need to encourage frankness in care proceedings.
69. Mrs X and the local authority are entitled to the orders they seek.

Disclosure – the CICA

70. B is eligible to receive criminal injuries compensation for the sexual abuse she suffered at the hands of the Defendant. The local authority submits that in order to ensure that she receives her full entitlement to compensation, the CICA needs to be fully aware of the background and to be provided with comprehensive details of what happened.
71. Mrs X supports the local authority's application for disclosure.
72. B's guardian says that B has suffered very greatly as a result of her father's actions. It is right that a full claim is made for compensation from the CICA. Those assessing B's claim must have access to the appropriate documentation from the care proceedings which demonstrates the full gravity of the crime against her, for this will have a direct bearing on the level of compensation she receives.
73. A list of appropriate documentation has been agreed between all parties, save for the Defendant.
74. The Defendant's counsel submits that disclosure to the CICA should be limited to what is "strictly necessary". Since, as she points out, the CICA sets levels of compensation according to specified criteria, it will suffice, she says, if the CICA is supplied only with my judgment and with the results of the DNA tests.
75. It is, in my judgment, perfectly obvious that disclosure of relevant documents to the CICA is not merely appropriate but plainly very much in B's best interests, and I am quite satisfied that the documents which need to be disclosed are indeed those identified by the other parties. Such disclosure is not in any practical sense of any concern to or potentially prejudicial to the Defendant. Accordingly I propose to make an order in the terms sought by the local authority. If authority to justify this decision is required I need do no more than point to Re X (Disclosure of Information) [2001] 2 FLR 440.
76. So far as concerns the application to the CICA I should add only this. The local authority's solicitor helpfully supplied me with a copy of The Criminal Injuries Compensation Scheme 2001. Although I appreciate that the matter is not before me, I think it right in all the circumstances to say this, which can be passed on if the local authority thinks it appropriate to the CICA It is quite clear on the basis of all the evidence I have read and heard that:

i) B was subjected by the Defendant to repeated incidents of vaginal intercourse over a period of (at the very least) many months;

ii) given B's age and the fact that the abuser was her own father, it cannot in any meaningful sense be said that this abuse was anything other than non-consensual; and

iii) this repeated abuse had the very serious and long-lasting psychological and emotional effects on B which are summarised in the threshold criteria document.

Further details of the impact of all this on B will be found in the threshold criteria document.

Disclosure – adult services

77. It is sadly all too apparent that B will remain vulnerable when she reaches the age of 18. So she is likely to require ongoing support from the local authority. In order to understand the background to the case and the type of support B is likely to require in the future, workers from adult services who will be involved with her will need access to the case papers. As counsel for the local authority put it, the professionals involved need to know what they are dealing with in order to help B.
78. B's guardian considers the disclosure of relevant material to adult services to be an essential part of the planning for B's future. It is vital that there is a smooth transition from children's services to adult services, which can only properly be achieved if those taking on responsibility for B have the relevant information about her.
79. Again, a list of appropriate documentation has been agreed between all parties, save for the Defendant, this having been agreed at what counsel for the local authority calls an informative and minimum level.
80. Again it is, with all respect to the Defendant's counsel, perfectly obvious that disclosure of relevant documents to the local authority's adult services is not merely appropriate but manifestly very much in B's best interests. It is essential that professionals involved in her future care and therapy have access to the relevant documents, which are, I agree, those identified by the local authority. I will make an order in the terms sought.

Conclusion

81. For all these reasons, these applications succeed. I will make orders essentially in the terms sought by the local authority and by Mrs X.

Orders

82. Accordingly, in relation to the criminal proceedings in the Crown Court I made an order in the following terms:

"UPON THE JUDGE having found that the paragraphs of Part 1 and (so far as it goes) of Part 2 of the Threshold Criteria document set out in the Schedule to this order (and which Mrs X has leave to disclose into the criminal proceedings by virtue of paragraph 3 of this Order) accurately reflect the harm suffered by the three children who were victims of the Defendant's abuse

AND without prejudice to section 12 of the Administration of Justice Act 1960 (as amended) to section 97(2) of the Children Act 1989 (as amended) and to the order made herein by Mr Justice Munby on 8 May 2007

IT IS HEREBY ORDERED that:

1 The local authority shall have leave to disclose a transcript of the evidence of the Defendant given in family proceedings Case No … before Mr Justice Munby on 29 and 30 November 2007 to … Crown Prosecution Service and … Constabulary.

2 Mrs X shall have leave to disclose the aforesaid transcript of the Defendant's evidence as part of her Victim Impact Statement to the Crown Court in criminal proceedings concerning the Defendant.

3 Mrs X shall have leave to disclose for the same purpose the following parts of the Threshold Criteria document namely

• Part 1: paragraphs 1-6, 9-14, 18, 19(b), 33-35, 41 and 43;

• Part 2: paragraphs 1-7;

being the parts which are set out in the Schedule to this order.

4 The local authority shall have leave to serve a copy of this order upon … Crown Prosecution Service and … Constabulary.

5 Mrs X shall have leave to disclose a copy of this order as part of her Victim Impact Statement in criminal proceedings.

THE SCHEDULE

(Relevant parts of the Threshold Criteria document)

[omitted in the interests of the children]"

83. In relation to the other matters the order I made provided as follows:

"UPON THE JUDGE having found that the paragraphs of Part 1 and (so far as it goes) of Part 2 of the Threshold Criteria document referred to in Schedule A to this order accurately reflect the harm suffered by the three children who were victims of the Defendant's abuse

AND without prejudice to section 12 of the Administration of Justice Act 1960 (as amended) to section 97(2) of the Children Act 1989 (as amended) and to the order made herein by Mr Justice Munby on 8 May 2007

IT IS HEREBY ORDERED that:

1 The local authority shall have leave to disclose to the Criminal Injuries Compensation Authority the documents set out in Schedule A to this order in order to assist the Authority to determine the claim made on behalf of B for compensation.

2 The local authority shall have leave to disclose to Adult Services the documents set out in Schedule B to this order.

SCHEDULE A

(Documents to be disclosed to the CICA)

[omitted in the interests of the children]

SCHEDULE B

(Documents to be disclosed to Adult Services)

[omitted in the interests of the children]"

The judgment

84. This judgment has deliberately been prepared in anonymised form so that it can be published in the same way as was my previous judgment in Re X (Children) [2007] EWHC 1719 (Fam).
85. The fact that it has been anonymised is not, however, any reason why it should not be sent to the Crown Prosecution Service and to those involved in the Crown Court proceedings; indeed, it is my intention that it should be, not least so that the Crown Court can properly understand not merely why I have made the orders I have but also the relevant background as I see it.
86. For the avoidance of doubt I remind all concerned that the contra mundum injunction I made on 8 May 2007 remains in force.
87. Finally, I repeat the point I made in Re X (Children) [2007] EWHC 1719 (Fam) at para [51]. It is of course ultimately for the judge in the Crown Court who is conducting the criminal proceedings and not for the judge in the family court who is conducting the family proceedings to decide whether or not and to what extent section 98(2) of the Children Act 1989 applies in any particular situation. It is not my intention to trespass in any way on the jurisdiction of the judge in the Crown Court. And nothing in this judgment is intended to preclude the Defendant making whatever submissions he may wish before the judge in the Crown Court as to the use which should or should not be made in the Crown Court of the materials which I have directed to be disclosed.

Postscript (31 March 2008)

88. The Defendant appeared in the Crown Court on 25 January 2008, as it happens before the same Circuit Judge who had dealt with the earlier criminal proceedings. He pleaded guilty to the following indictment:

"Sexual activity with a child family member contrary to Section 25(1) and (6) of the Sexual Offences Act 2003.

[The Defendant] between the 1^st day of August 2005 and the 1^st day of August 2006, being a person over the age of 18 intentionally touched his daughter [B], a person under the age of 18 by penetrating her vagina with his penis in circumstances where the touching was sexual, where he knew or could reasonably be expected to know that the said [B] was his daughter, and where he did not reasonably believe that the said [B] was aged 18 or over""

89. The Defendant was due to be sentenced in the last week of February 2008 but in the event this was adjourned until 18 March 2008, when the Defendant was sentenced on the basis of the admissions he had made during his cross-examination before me. He was, of course, still subject to the indeterminate sentence passed on the previous occasion for the attempted murder. The Judge, applying the 'totality' principle, taking all the aggravating features into consideration, but giving the Defendant credit for a guilty plea at the first opportunity, added a further two years to the minimum term imposed on the previous occasion. The Defendant was also disqualified from working with children for life and placed on the sex offenders register indefinitely.