England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF X and Y (CHILDREN: DISCLOSURE OF JUDGMENT TO POLICE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/02/2014

THE HONOURABLE MR JUSTICE BAKER

The Honourable Mr. Justice Baker :

INTRODUCTION

1. The issue arising in this judgment is whether I should restrain the local authority from disclosing to the police transcripts of two earlier judgments I have delivered in the long-running care proceedings concerning two children, "X" and "Y".
2. For the purposes of this judgment, it is unnecessary to set out more than the bare bones of the history. The care proceedings started following the discovery that Y .had sustained injuries. A fact finding hearing was conducted by me and led to a judgment (hereafter referred to as "my first judgment"). That judgment has been published anonymously. The un-redacted version of the judgment has not been communicated to anybody, including the police.
3. In that judgment, I reached the following conclusions:

(1) The parents had not told the truth about the circumstances in which Y sustained the injuries.

(2) The local authority had proved on a balance of probabilities that Y sustained the injuries non-accidentally whilst in the care of one or both of the parents.

(3) I was unable to say whether the injuries were sustained as a result of one or more incidents, nor to identify which parent was responsible.

(4) It was probable that one of the parents was responsible for the injuries and the other was knowingly withholding information so as to protect the perpetrator.

4. I ended my judgment by expressing the acknowledgment that both parents were in many other ways good parents to X and Y. Both wished very much to care for the children again. I acknowledged that all children, wherever possible, should be brought up by their parents and said that I did not regard my findings as the end of the story. I urged both parents, even at that late stage, to be more frank with the court about what had happened to Y so that the professionals and the court could work together with them to ensure that both children were safe in the future.
5. Two days after the delivery of that judgment, the father confessed that he had inflicted the injuries. Following this development, the parents separated. The matter was therefore restored before me and I directed a further fact-finding hearing be listed urgently before me. The father duly filed a statement in which he described in detail the circumstances in which he had come to inflict the injuries. The mother filed a statement setting out her response to the father's confession. Two experts filed addendum reports in which they accepted that the injuries could have been sustained in the incidents described by the father.
6. The resumed fact-finding hearing took place, at the conclusion of which I delivered an ex tempore judgment which has also been transcribed but, to date, not released for publication nor disclosed to the police. In that judgment (hereafter referred to as "my second judgment"), I concluded, on a balance of probabilities, that the injuries had been inflicted by the father in the manner described in his statement. In addition, I reviewed my conclusion in my first judgment that the mother had not been truthful. Having carefully reconsidered the various strands of the evidence, I concluded that the local authority had not proved that the mother knew or ought to have known that the father had injured or was likely to injure Y, nor that she had failed to protect the children.
7. The mother having been thus completely exonerated, the case was ultimately resolved, following further assessments, by the rehabilitation of the children with the mother. I made a supervision order for 12 months, on the basis that the children would reside with the mother and that the father's contact with the children would be supervised.
8. That order did not, however, completely conclude the proceedings, because the father's lawyers had filed an application for an order "preventing or prohibiting the local authority, or any other party, disclosing any material contained within these proceedings to the police or the Crown Prosecution Service". As a result, the local authority has refrained from passing on any information concerning my findings to the police. Following the discovery of Y's injuries, the police had carried out an investigation but, having concluded that they were unable to determine which parent caused the injuries, had closed their file under the heading "no further action" Subsequently, however, a Detective Sergeant filed a statement seeking disclosure of any information that had come to light in these proceedings indicating the perpetrator of Y's injuries "in order that the decision to prosecute that person can be taken".
9. After a further regrettable delay, a full hearing was therefore arranged (during the Christmas vacation) in January 2014 at which this question was considered. At the outset, I indicated that I proposed to proceed in stages. The first stage would be to ascertain whether un-redacted copies of my two judgments should be disclosed to the police. The second stage would be to consider any application by the police for disclosure of other information relating to the proceedings, which would of course be effected by my decision on the first question as to disclosure of the judgments. The hearing in January therefore focussed on the first question – disclosure of the judgments. Written submissions were filed by all parties to the care proceedings – by the father, mother and guardian opposing disclosure and by the local authority supporting it. A short written submission was also filed by counsel for the police who attended at court but did not sit in during the hearing to allow counsel for the father and others to refer freely to confidential information in support of their respective positions.

THE LAW

10. Section 98 of the Children Act 1989 provides:

"(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, 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 of an offence.

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

11. Proceedings under the Children Act are to be held in private except where statute or regulation provides to the contrary or where the court directs otherwise: Family Procedure Rules ("FPR") 2010, rule 27.10. Section 12 of the Administration of Justice Act 1960 provides inter alia:

"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a) where the proceedings -

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor…."

12. Since the introduction of the Children Act, there have been a series of regulations setting out specific provisions about the disclosure of information relating to proceedings concerning children. The original rule was set out in Rule 4.23 (1) of Family Proceedings Rules 1991 which provided:

"Rule 4.23 of the Family Proceedings Rules 1991 is in these terms, under the heading 'Confidentiality of documents':

(1) Notwithstanding any rules of court to the contrary, no document, other than a record of an order, held by the court relating to proceedings to which this Part of the Act applies shall be disclosed, other than to –

(a) a party,

(b) the legal representative of a party

(c) the guardian ad litem.

(d) the Legal Aid Board, or

(e) a welfare officer, or Children and Family Reporter,

(f) an expert whose instruction by a party has been authorised by the court

without leave of the judge or district judge."

13. In 2005, rule 4.23(1) was repealed and replaced by a new rule – rule 10.20 A, which relaxed some of the restrictions on disclosure. Since then, there have been further reforms – the introduction in 2009 of a new part 11 of the 1991 rules and then the replacement of the 1991 rules with the FPR 2010. The current rules concerning disclosure of information are contained in chapter 7 of part 12 of the FPR 2010, supplemented by Practice Direction 12 G. In some respects, the current rules provide a further relaxation of the restrictions on disclosure (see the analysis of Munby J, as he then was, in Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam). [2009] 2 FLR 1152), but the rules governing the type of disclosure under consideration in this application remain substantially the same as under the 2005 amendments to the 1991 rules, although the wording of the new rule is different.
14. Rule 12.73 (1) of FPR 2010 provides:

"Communication of information: general

(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –

(a) where the communication is to –

(i) a party;

(ii) the legal representative of a party;

(iii) a professional legal adviser;

(iv) an officer of the service or a Welsh family proceedings officer;

(v) the welfare officer;

(vi) the Legal Services Commission;

(vii) an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;

(viii) a professional acting in furtherance of the protection of children;

(ix) an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

(b) where the court gives permission; or

(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12 G."

15. Practice Direction 12 G supplements chapter 7 of the rules. Paragraph 1.2 of the Practice Direction provides inter alia:

"Subject to any direction of the court, information may be communicated for the purposes of the law relating to contempt in accordance with paragraph 2.1…"

Paragraph 2.1 contains a table where under certain specified persons are given permission to communicate specified information to other specified people for specified purposes. Relevant to this application is the provision in the table that a party to the care proceedings may disclose to a police officer the text or summary of the whole or part of a judgment for the purposes of a criminal investigation. "Criminal investigation" is defined in paragraph 6.1 of the Practice Direction as meaning "an investigation conducted by police officers with a view to it being ascertained (a) whether a person should be charged with an offence, or (b) whether a person charged with an offence is guilty of it." The table in paragraph 2.1 further provides that a party or person lawfully in receipt of information may communicate the text or summary of the whole or part of a judgment given in the proceedings to a member of the Crown Prosecution Service to enable that service to discharge its functions under any enactment.

16. Thus the scheme of the current rules is that communication of information relating to care proceedings falls into three categories:

(1) communications under rule 12.73(1)(a), which may be made as a matter of right;

(2) communications under rule 12.73(1)(c) and Practice Direction 12G paragraphs 1 and 2, which may be made, but are subject to any direction by the court, including, in appropriate circumstances, a direction that they should not be made, and

(3) other communications, which under 12.73(1)(b) may only be made with the court's permission.

Plainly, whereas the onus in respect of proposed communications under rule 12.73(1)(b) lies on the party seeking permission to communicate, the onus in respect of communications that would otherwise be permitted under rule 12.73(1)(c) and Practice Direction 12G paragraphs 1 and 2 lies on the party contending that such communication should not be permitted.

17. It is perhaps surprising that, since the introduction of the Children Act, there have been relatively few reported authorities on the interpretation of the rules governing disclosure to the police of information relating to care proceedings. Counsel were able to identify only two cases in which these provisions have been considered by the Court of Appeal. The first such decision – Re C (A Minor) (Care Proceedings: Disclosure) [1997 Fam 76 [1997] 2 WLR 322, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725, CA, hereafter referred to as "Re EC" – is the leading authority on this point. In ordering disclosure of a number of documents generated from care proceedings to the police under rule 4.23 of the 1991 rules, the Court of Appeal, through Swinton-Thomas LJ giving the lead judgment, identified the matters for a judge to consider when deciding whether to order disclosure:

"(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.

(2) The welfare and interests of other children generally.

(3) The maintenance of confidentiality in children cases.

(4) The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which s98(2) applies. The underlying purpose of s98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not give by the words of the section and cannot be given.

(5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.

(6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.

(7) 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.

(8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, school, etc. This is particularly important in cases concerning children.

(9) In a case to which s98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.

(10) Any other material disclosure which has already taken place. "

18. Re EC, of course, was decided over 17 years ago under the old rule 4.23. The second Court of Appeal decision is Re H (Care Proceedings: Disclosure) [2009] EWCA Civ 704, 2009 2 FLR 1531, decided under rule 10.20A of the amended 1991 rules which, as set out above, is substantially the same as the provisions now contained in rule 12.73 of the FPR 2010 supplemented by Practice Direction 12G. In Re H, Thorpe LJ (at paragraph 22) emphasised the judgment of Swinton-Thomas LJ in Re EC remains "the leading judgment in this field". But he and Bodey J, who gave the lead judgment in Re H, acknowledged that there had been a change of attitude and policy regarding disclosure and transparency. That might be thought to make it more likely that a court in these circumstances would order disclosure. It is therefore interesting to note the observation of Bodey J at paragraph 18:

"…these cases inevitably involve a fine balance. This is so especially (a) where a parent has made a confession within what I will call the confines of the family court, with all the consequential benefits within the family justice system and (b) where there is the ongoing possibility of rehabilitation, which might be impeded or harmed by further criminal investigations: but at the same time (c) where there is still, inevitably, a strong public interest in the investigation and prosecution of serious crime."

19. In addition to these Court of Appeal cases, counsel have drawn my attention to a number of reported first instance decisions over the past 15 years, in which the court has been asked to rule on issues of disclosure of confidential information arising in care proceedings to the police. The case decided in which disclosure to the police was refused are Re M (Care Proceedings: Disclosure: Human Rights) [2001] 2 FLR 1316, (a decision, under rule 4.23, of Miss Elizabeth Lawson QC sitting as a deputy High Court judge) and Re P (Care Proceedings: Disclosure) [2008] EWHC Fam 2197, [2009] 2 FLR 1039 (a decision, under rule 10.20A, of His Honour Judge Hunt, also sitting as a deputy High Court judge). The cases decided in which disclosure to the police was ordered were Re AB (Care Proceedings: Disclosure of Medical Evidence to Police) [2002] EWHC 2198 (Fam) [2003] 1 FLR 579 (a decision of Wall J, as he then was, under rule 4.23) and Re X (Children) [2007] EWHC 1719 (Fam) [2008] 1 FLR 589 (a decision of Munby J under rule 10.20A). While all of these judgments contain insightful observations, it must be remembered that each case will eventually turn on its own facts.
20. One further first instance decision I have born in mind is that of Mr Stephen Cobb QC (as he then was) in Lewisham LBC v D (Local Authority: Disclosure of DNA Samples to Police) [2011] 1 FLR 895 in which the learned deputy High Court judge rightly pointed out that Re EC was decided before the incorporation of the European Convention of Human Rights into our law under the Human Rights Act 1998 and that, in conducting the balancing exercise to determine whether to permit disclosure of material to the police, the court must have in mind all relevant human rights, in particular those arising under Articles 6 and 8 of the Convention.
21. When a judgment is disclosed to the police and onwards to the CPS under rule 12.73 and Practice Direction 12G paragraph 2.1, the person receiving the information is not entitled thereafter to disclose the material onwards without the further permission of the family court. Thus the police and the CPS could not disclose either judgment, or any information contained therein, to any person without the permission of the family court judge.
22. Furthermore, the fact that a judgment, or indeed any information relating to family proceedings, is disclosed to the police and the prosecuting authorities does not automatically render it admissible in the criminal proceedings. The rules governing the admissibility of evidence in criminal proceedings are, of course, governed by the Criminal Procedure Rules. In addition, there is the important provision in section 98(2) of the Children Act set out above. By definition, the question of admissibility of evidence in criminal proceedings will only arise within those proceedings themselves. So far as this court is aware, there is no reported case in which the interpretation of section 98(2) has been considered in a criminal case, and counsel in this hearing has not drawn my attention to any such authority. Section 98(2) has, however, been considered in a number of family cases, including Oxfordshire CC v P [1995] 1 FLR 552, Cleveland CC v F [1995] 1 FLR 797 and Re G (Social Worker: Disclosure) [1996] 1 WLR 1407. In particular, it has been recognised by the family court that, while section 98(2) prevents the confession made in family proceedings being admissible in evidence in court proceedings (save on a count of perjury), it does not preclude the police, to whom the evidence of the confession is disclosed, from using that evidence, in the words of Ward J in Oxfordshire CCl v P at page 561, to "shape the nature and range of the enquiries they undertake in the investigation of the alleged criminal offences". The police may, for example, put the confession to a suspect in a further interview. If they do so, and he accepts the truthfulness of the confession, that response may itself become admissible in the criminal proceedings. Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a "previously inconsistent statement" pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.
23. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re EC and was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.

"Prior to the hearing of the care proceedings, there were five members of SC's family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

'Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words 'or your wife' and 'or your husband'. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. "

24. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case.
25. The issues on an application by the police for disclosure of information relating to care proceedings are therefore complex, and in my view justify the staged process that I have elected to adopt in this case. That course has been adopted by other judges in other cases, notably Munby J in Re X (supra) at paragraphs 38-39:

"38. It has to be born in mind that the choice for the court is not confined to either ordering or refusing to order disclosure. The court has power to impose to impose appropriate conditions where that is necessary to hold the balance fairly and in a Convention-compliant manner.

39…A 'step by step' approach may be appropriate, the family court directing the disclosure of the documents which seem to be most immediately relevant but on the basis that the applicant can always make a supplementary application for the disclosure of further documents….It may be appropriate for the family court to retain control over any further dissemination of the documents (or of the information contained in the documents) especially if there is a prospect of the documents (or the information) entering the public domain. Sometimes it may be appropriate to disclose only parts of certain documents or to disclose documents in an edited or redacted form."

26. A further illustration of the use of this approach is found in the decision of Baron J in Re M (Care: Disclosure to Police) [2008] 2 FLR 390. In that case, the mother had made a confession in care proceedings that she had been responsible for injuries that had led to the death of her older child. Baron J ordered disclosure of certain documents to the police, including the confession. Subsequently, the police applied for permission to disclose the confession to the expert witnesses instructed in the criminal investigation, but concern was raised on behalf of the mother that such disclosure might jeopardize the protection afforded to the mother under section 98(2). The learned judge therefore ordered that only a summary of information, dealing with the mechanism of the injuries suggested by the mother in her confession, should be given to the experts instructed by the police, holding that, while it was appropriate for the experts in the criminal context to comment upon the mother's version of events as a mechanism for the injuries to the first child, they did not need to know of her express confession.

SUBMISSIONS

27. In this case, the father, supported by the mother and, on balance, the children's guardian, invites the court to direct that no party should disclose the transcript of either of my judgments to the police.
28. As explained above, the onus lies on those parties opposing disclosure.
29. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.

(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father's article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.

30. The mother and the guardian base their submissions around the Re EC criteria, emphasising in particular the arguments concerning the children's welfare.
31. The local authority opposes the father's applications, and relies in particular on a number of factors identified in Swinton-Thomas LJ's judgment in Re EC stressing in particular the desirability of cooperation between various agencies concerned with the welfare of children, in particular in this case social services and the police.

Mr Storey's first argument – breach of Article 6

32. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y's injuries, the court was infringing the father's article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.

"But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make."

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.

33. I accept that the father's confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court's failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father's right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y's injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.
34. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.

Balancing Exercise

35. As indicated in Re H by Thorpe LJ, Re EC remains the leading authority when deciding whether to disclose confidential information arising in care proceedings. The analysis conducted by Swinton-Thomas LJ was comprehensive and the ten factors identified by him all remain relevant to such a decision.
36. As the Court of Appeal acknowledged in Re H, however, the relative importance of the ten factors has inevitably changed over the seventeen years since Re EC was decided. In particular, the cloak of confidentiality surrounding care proceedings has been significantly lifted by the successive relaxation of the rules. There are now moves towards much greater transparency in care proceedings, for the reasons explained by the President on a number of occasions, most recently in Re P (A Child) [2013] EWHC 4048 (Fam).

Arguments against disclosure

37. Applying the Re EC criteria to this case, the factors against disclosure of the judgments to the police are as follows.

(a) The welfare of the children and of the family generally

38. X and Y and their mother have lived through a very difficult period while the wheels of family justice have moved slowly to resolve the circumstances in which Y sustained serious injuries. During that period, X and Y have been separated from their parents whom they have only seen in a supervised setting. There is no doubt that the children, and in particular X, have suffered considerable harm as a result of the prolonged separation from their parents. The children will continue to need professional help to support them as they recover from these experiences.
39. Fortunately, if belatedly, the family court has been able to determine conclusively the cause of Y's injuries as a result of further evidence and ultimately, the father's confession. Now the children are back in the care of their mother. But life has not yet returned to normal. The scars caused by the years of separation will remain for some time and possibly indefinitely. Furthermore, although the children are now rehabilitated with the mother, they remain apart from the father, whom they continue to see only in a supervised setting. I accept that the children have a close and loving relationship with their father, and continue to be emotionally affected by his absence from their home.
40. The prospect of a further criminal investigation, and possible prosecution, raises the spectre of further suffering for the children. A criminal investigation by itself will create renewed pressures. If the father is prosecuted, there will be further consequences, whatever the outcome of the prosecution. There will be publicity and stigma for the family. More importantly, it is likely that the father will lose his job and as a result the family will lose their home. There will be a sharp decline in the family income and X will in all probability have to leave the school which X now attends. Whatever sentence the father receives if convicted, he will in all probability lose the access to the important therapy that he has just started to address the psychological causes for his actions in injuring Y. Without that therapy it might be difficult for him to persuade the court in future that he should have unsupervised contact to his children, or be permitted to return to the family home.
41. In these circumstances, it is submitted by the father, mother and guardian that the adverse effects of disclosure of the judgment to the police on the children's welfare will be profound, and that this fact ought to carry decisive weight in the balancing exercise. In addition, it is submitted on behalf of the mother that to expose her to the renewed pressure of a further police investigation after she has been exonerated by this court, and in the context of the overall history of this family, would be unfair given all that she has suffered.
42. In the circumstances, it is submitted that disclosure of the transcripts of the judgments will infringe the Article 8 rights of the children and their parents.

(b) Fairness to a person who has incriminated himself

43. In his submissions on the balancing exercise, Mr Storey attached particular weight to one element of the ninth factor identified by Swinton-Thomas LJ in Re EC. He submitted that, as the court had omitted to give the parents any warning that an admission of responsibility for the injuries might not be kept confidential from the police, it would be unfair on the father to disclose the judgment, or any information relating to his confession to the police, and that this factor ought to carry decisive weight in the balancing exercise. He reiterated the points made on his primary submission set out above. In my judgment, however, it will be possible to so restrict the use of the judgment by the police so that no further dissemination of information contained in the judgments can be made without a further full argument as to fairness to the father.

(c) Frankness and confidentiality

44. A third argument against disclosure – not one which featured prominently in counsel's submissions but which seems to me to be of some importance – is that this case has ultimately been a good illustration of how the court, by encouraging frankness in the confidential setting of care proceedings, has been able to arrive at an outcome that best meets the needs of the children. There is a danger that, by disclosing any information to the police, parties in a similar position in other proceedings will be discouraged from speaking frankly about what they have done.

Arguments in favour of disclosure

45. The arguments in favour of not preventing the local authority from disclosing the judgment to the police are as follows;

(a) Co-operation between various agencies and public interest in the administration of justice.

46. On behalf of the local authority Miss Griffiths placed particular importance on the eighth factor identified by Swinton-Thomas LJ in Re EC – the desirability of co-operation between various agencies concerned with the welfare of children, in particular in this case social services and the police. The importance of such co-operation – recognised by the courts at the time of the Re EC decision – is now perceived as being crucial in maximising the protection given to children. This recognition underpins the recently published 2013 Protocol and Good Practice Model concerning disclosure of information in cases of alleged child abuse.
47. In this case, the police properly disclosed material generated in their investigation for use by the parties and this court in the care proceedings. In those circumstances, it is submitted that good practice requires this court not to restrain the local authority from disclosing the judgments generated at the conclusion of the fact-finding process.
48. Linked to this submission is the fifth factor identified by Swinton-Thomas LJ – the public interest in the administration of justice, and the argument that barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice. Again, the importance of this principle has been widely accepted, and it is again reflected in the terms of the 2013 Protocol.

(b) Public interest in prosecution of serious crime and the gravity of this offence

49. The sixth and seventh factors identified by Swinton-Thomas LJ seem to me to be of particular importance in this case. It is in the public interest that serious crimes should be brought to the attention of the police so that they can decide whether to carry out any investigations. The father has admitted to assaulting Y on each occasion with sufficient force to cause the injuries. As has been acknowledged by many judges on previous occasions – for example, Baron J in Re M [2008] (supra) at paragraph 18 – it is the police who have a duty to investigate crime and it is the Crown Prosecution Service which has a duty to decide whether to bring criminal charges. It is not for the family court to decide whether prosecutions should be brought or pursued. Disclosure of the judgment will enable the police and CPS to decide whether or not to pursue the criminal investigation. In carrying out the balancing exercise as to disclosure of the judgments, this court recognises the importance of not impeding those bodies from carrying out their statutory duties.

(c) The welfare and interests of other children

50. During oral argument, there was some discussion as to whether other children were at risk from this father. Manifestly, if the father is a risk to other children, that would be a significant factor in support of disclosure. On behalf of the local authority, Miss Griffiths submits that the father must present a risk to other children in his care until he addresses issues around his temper and propensity to resort to violence in anger.
51. On the other hand, it is submitted the best way for father to address his difficulties with anger is through the therapy currently being provided which would be discontinued were he to lose his job.

(d) Other material disclosure

52. I am told that currently the police are aware only that this court has made a finding as to the perpetrator of Y's injuries. They do not know the identity of the perpetrator.
53. As Mr Ker-Reid on behalf of the guardian points out, however, it would surely not take much investigation for the police to work out the identity of the perpetrator. My first judgment has been published and, although the reports are anonymised, there is sufficient information within the published report to enable the police, with their knowledge of the background the case, to identify that this is the same case. Equally, it would not take much investigation by the police to discover that the children have been returned to the mother's care and therefore to deduce that the perpetrator identified by the court was indeed the father.
54. The police's current state of incomplete knowledge is unsatisfactory for another reason. At present, so far as the police are aware, both parents are under suspicion. It must be in the interests of the mother, and therefore indirectly of the children, and indeed in the wider public interest, for the police to know that she has been exonerated and for any suggestion in the records held by the police casting suspicion on her to be expunged.

CONCLUSION

55. In my judgment, the balance in this case clearly falls in favour of disclosure of the judgment to the police and the Crown Prosecution Service, subject to clear directions for the court restricting further disclosure of the judgment or any information contained therein without permission of this court.
56. The assaults inflicted on Y by the father were serious. The amendments for the rules have been carefully crafted to enable the police to be informed of the judge's findings and reasons, but to preclude any further use of the information in the judgment without the further permission of the family court. The public interest in the sharing of information between the agencies involved in child protection, and the removal of barriers between different branches of the justice system, have been recognised by the terms of Practice Direction 12G and are underlined by the terms of the 2013 Protocol. There may be cases where other factors outweigh this public interest. In my judgment, this case does not fall into that category. The welfare of the children will not be significantly affected simply by the disclosure of the judgment, provided the police and the CPS are precluded from disclosing it, or any information contained in it, to any person without the court's permission. Indeed, in so far as disclosure of the judgment completes the exoneration of the mother, it may indeed buttress the children's placement in her care and therefore perhaps improve their emotional security.
57. If, having read the judgments, the police seek permission to disclose them, or information contained in them, to other persons (for example, to the parents or any other person in the course of conducting further interviews) the strong arguments advanced on behalf of the parents – in particular, by the mother, that further disclosure will have a seriously adverse impact on the welfare of these two children who have already suffered significant harm – will doubtless be deployed again. The fact that the deployment of those arguments on this application has not persuaded me to prevent disclosure of the judgments should not be interpreted as any indication of where the balance would fall in the event that the police seek permission for wider disclosure, or for that matter for disclosure of further documents or information relating to these proceedings.
58. Equally, if the police seek this court's leave to disclose the judgments, or any information contained therein, to any other person (for example, in further interviews), the father's lawyers will be able to rely again on the argument that his confession was induced by the court without any warning as to the possible consequences. The fact that this argument has not persuaded me to preclude disclosure of the judgments should not be interpreted as any indication of where the balance might fall in the event of an application for further disclosure.
59. In a short supplemental written submission, Miss Rogers on behalf of the mother argued that disclosure of the judgments would open a gateway to the re-opening of a criminal investigation which has been closed for some time and that, once the gateway is opened, the court will have no means of controlling the steps that may be taken by the police or the CPS, unless it makes orders which binds the information in the hands of one person, hampering the police investigation and thus likely to be challenged. I do not accept that this court will lose control of information simply by not restraining the local authority from disclosing the judgments to the police. The purpose of disclosing the judgment is to inform the police of the outcome of the fact-finding process in the care proceedings so that they can decide whether to pursue their investigation and make a further application for disclosure. Neither the police nor the CPS may disclose the judgments, or any information in the judgments, without my permission. I propose to buttress the clear provisions of Chapter 7 of the FPR by an order making clear the limits of the disclosure I am permitting at this stage. Any contravention of the rules or this order would be a contempt of court.
60. I also propose to authorise disclosure of a transcript of this judgment to the police.
61. I will therefore make an order in the following terms:

"Upon hearing leading and junior counsel for the second respondent father, and counsel for the applicant local authority, first respondent mother and the children's guardian.

And upon the local authority indicating that it proposes to disclose to [named individuals in the Constabulary] copies of the approved transcripts of the judgments delivered by this court in these proceedings on [the dates of my first and second judgments],and 12^th February 2014.

And upon the father's application for an order restraining any party from disclosing copies of the said judgments to the police.

And without prejudice to section 12 of the Administration of Justice Act 1960 (as amended by chapter 7 of the Family Procedure Rules 2010 and Practice Direction 12G: and section 98 (2) of Children Act 1989 as amended)

And upon the court recording that any unauthorised disclosure of the judgments named herein would be a contempt of court.

It is ordered that

(1) the application by the father for an order restraining any party to these proceedings from disclosing the judgments dated [the dates of my first and second judgments], and 12^th February 2014 to the [Constabulary] is refused;

(2) pursuant to rule 12.73(1) (c ) of the Family Procedure Rules 2010 and paragraph 1.2 of Practice Direction 12G, the disclosure of the judgments in these proceedings of [the dates of my first and second judgments], and 12^th February 2014 to the police and any subsequent disclosure by the police to the Crown Prosecution Service, is subject to the following directions: (a) none of the said judgments, nor any information contained therein, shall be disclosed to or discussed with the First and Second Respondents to these proceedings or any other person outside the [Constabulary] or the Crown Prosecution Service, without further permission of this court; (b) a copy of this order shall be given to any individual within the [Constabulary] or the Crown Prosecution Service to whom any of the said three judgments are shown or given; (c) the [Constabulary] and the Crown Prosecution Service shall require any individual within the [Constabulary] or the Crown Prosecution Service to whom copies of any of the said judgments are shown or given to sign a written document confirming that they have received a copy of this order and understand its terms and effects, and shall deliver copies of the said signed documents to the local authority;

(3) nothing shall be published, read into the public record or otherwise put into the public domain that might lead to the identification of the mother, father or the subject children as being the persons referred to in the judgments of [the dates of my first and second judgments] and 12^th February 2014, without the further permission of this court

(4) the [Constabulary] and Crown Prosecution Service shall have liberty to apply for any variation of the terms of this order on 7 days notice to the parties in the care proceedings;

(5) all applications concerning disclosure of the said judgments, or any information relating to these proceedings, are reserved to Mr Justice Baker.

(6) the children shall be represented by CAFCASS as before on any applications concerning disclosure of the said judgments, or any information relating to these proceedings.

(7) there is no order as to costs save for a detailed assessment of Respondents' public funded certificates;

(8) for the avoidance of doubt, neither the transcript of judgment dated [the date of my second judgment] nor the transcript of judgment dated 12 February 2014 shall be published without the prior permission of this court."

Postscript

Subsequently, I have given permission for the publication of a redacted version of this judgment dated 12^th February 2014.