England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		4 May 2018

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

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MR JUSTICE HOLMAN:

1. A very unusual application has been made to me this morning. In essence, it is an application by the police to delay service of a Cafcass report which was prepared on time by Cafcass and should have been served by now. Contrary to my normal practice, I have, for reasons which will become apparent, heard this application strictly in private with no members of the public or press within the courtroom. That cloak of privacy must remain in place for another week, as will become apparent. After the need for privacy has passed, it will be my intention to place a copy of the approved transcript of this judgment upon the public BAILII website, albeit anonymised so as not to reveal the names of the parties or their children. I am being asked to take a very unusual course this morning, and it seems to me that the public should be able to know in due time that that has been done and the reasons for it. This judgment also serves the important function of describing to the parties to these proceedings, in due course, and to CAFCASS now, the reasons for my decision and order.
   
2. The essential factual context of this application is that the parents were living together in New Zealand with their two children: a daughter, now aged 7 and-a-quarter, and a son, now aged 4 and-a-quarter. At some point (I am unaware today of the date) the mother travelled to England with the two children and she has remained here ever since. This led the father, who continues to live in New Zealand and is himself a citizen of New Zealand, to commence proceedings here for the summary return of his children to New Zealand pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the domestic Child Abduction and Custody Act 1985.
   
3. Those proceedings came, entirely coincidentally, before myself at the Royal Courts of Justice on 13 March 2018 for a first directions hearing. In summary, the directions made that day (which may have been largely consensual) made provision for a final hearing of the father's application over three days beginning on Wednesday, 23 May 2018. The order expressly provides, at paragraph 17, that both parties shall attend the final hearing. It continues:

"The cost of the father's attendance is, in the opinion of the court, a reasonable and necessary disbursement on his public funding certificate."

So, the order contemplates and requires that the father personally travels to England for that hearing in May.

4. I have been told today that it is currently understood that the date upon which the father actually intends to travel here is Saturday 19 May 2018, although due to the significant time difference between the two countries, and the length of the flight, there may be a little fluidity around that date, depending on whether one is focusing on his time of departure or his time of arrival.
   
5. The order of 13 March 2018 also made provision for an officer of the CAFCASS High Court team to investigate and report on a number of issues in this case as to whether or not the elder child objects to returning to New Zealand; the wishes and feelings of the children generally; and their level of maturity and understanding about their current situation and circumstances. The order provides that that report shall be filed and served by 27 April 2018, which was one week ago.
6. The order further recited an agreement between the parties as follows:

"The parties reached agreement directly between themselves to ensure that the children are able to see the father during his trip to the UK in April 2018. He will collect the children from the mother on 10 April, and return them to her on 15 April."

7. That clearly contemplated that between the hearing on 13 March 2018 (when the father himself was not present but remained in New Zealand) and the final hearing towards the end of May, he intended to travel for several days to the United Kingdom in order to see his children. He did indeed do so. I will now take up the narrative by quoting from the first few lines of a witness statement made by a Detective Sergeant in the Dorset Police, dated 26 April 2018. That reads as follows:

"On 16th April 2016 at 21:00 hours, Dorset Police were contacted by [the mother] who stated that her seven-year-old daughter had been on holiday with her father and when she returned she disclosed to her grandmother that he had sexually assaulted her whilst they were away. On 17th April 2018 [a named police constable] and an allocated social worker visited the child where a first account was obtained. Victim has given a video interview detailing a compelling account of the incident..."

8. I have been told by the Detective Sergeant who made that statement, who is in the courtroom today, that the account which the child gave and which he describes as "compelling" was an account of vaginal digital penetration by her father. I have been further told that in the same video interview the child described other occasions of digital penetration by her father, including whilst they were all still living in New Zealand. I should stress that I have not personally seen that video interview, nor any verbatim transcript of it, and indeed I know absolutely no more about this matter than I have now described and recorded.
9. Inevitably, an allegation of that kind requires to be fully investigated by the police. Further, since it includes allegations of sexual abuse in New Zealand, there has had to be, and is, mutual liaison with the police authorities in New Zealand. Police inquiries are still continuing in both countries.
10. The Dorset police or the New Zealand police desire and intend, at the appropriate stage of their investigations, to interview the father and possibly, or probably, arrest him. It is, of course, far too early to say, and entirely speculative, whether in due course he will actually be charged with a criminal offence or offences committed either here or in New Zealand. At the moment, so far as the police are aware, the father knows absolutely nothing about these matters. So far as the police are aware, no-one has told him that his daughter has made any of these statements or allegations, and he is completely unaware that he is the subject of any police investigation either here or in New Zealand.
11. I have been told today that there is now consensus between the police in England and the police in New Zealand that the appropriate country within which any ensuing prosecution should take place is New Zealand. Some explanation of the reasons for that has been given to me, but it is not relevant to what I have to decide. I merely start from the factual position that the joint intention of the two police forces involved is now that this father should be interviewed in New Zealand, and that if he is charged with any criminal offence or offences, those charges will be made in New Zealand and any ensuing prosecution will take place in New Zealand.
12. The police in New Zealand have not yet reached the point where they are ready to go over the parapet and confront the father and interview him, whether under arrest or not. The Detective Sergeant has made a further statement dated 3 May 2018, which reads in part as follows.

"Upon reviewing the case, the child has made reports of abuse that have taken place in New Zealand. Dorset Police have established contact with New Zealand and been liaising directly with the Child Abuse Investigation Team equivalent that covers the relevant area where the reported offences have taken place. Preparation of the evidence has been prepared and continues to be prepared to allow New Zealand police to mount a criminal investigation. A full transcript of the video interview of [the child] has been submitted along with the first disclosure statement obtained from the maternal grandmother. ... Details of the family in New Zealand have been prepared and submitted to New Zealand to ensure safeguarding measures can be implemented. New Zealand police have been appraised of the court proceedings. ... New Zealand police have agreed that they need to expedite the case and plans to arrest him are being made for next week. The date of the arrest is currently not known. Therefore, we respectfully ask that the CAFCASS report is either delayed for a further week or edited to allow New Zealand to undertake the investigation..."

13. That quotation brings me to the specific subject matter of the present application. By the order which I made on 13 March 2018 CAFCASS was required to file and serve its report by 27 April 2018, exactly a week ago. As a result of an interim holding order made last week by Williams J. they have not yet done so, although as I understand it the report was fully completed and signed off before 27 April 2018 and is ready to be filed and served.
14. The CAFCASS officer was not himself, or herself, involved at all in the ABE interview of the child, nor in any aspect of the investigation currently being carried out by the Dorset Police. However, inevitably, the CAFCASS officer was informed of the fact of that interview and the investigation, and as I understand it (although I have not seen the report) makes reference to it within his or her report. That, of course, is inevitable. The concern of the police is that if the father or his legal advisers were to see that CAFCASS report before the New Zealand police were to have interviewed him, then he would be "tipped off" and might react in a range of ways damaging to the important criminal investigation. So, the application that the Dorset Police have issued before me today is for an order delaying the filing and serving of that report and any disclosure of its contents by CAFCASS to either party or their solicitors.
15. When the Dorset Police first issued their application about 10 days ago, my understanding is that they sought that service or disclosure of the report should be delayed until after the father had actually arrived in England for the purposes of the listed hearing on 23 May 2018. That indeed is the thrust of the first statement made by the Detective Sergeant on 26 April 2018. I wish to make absolutely clear by this judgment, as I have already explained to Mr Richard Carroll, who appears on behalf of the Dorset Police, and indeed to the Detective Sergeant, that I would not have been willing to do that. The court order of 13 March 2018, as I have described, puts the father under a positive obligation to travel to this country in time for the hearing on 23 May. If I were to delay service or disclosure of the CAFCASS report until a very late date after he had actually arrived here, and if I had done so in the knowledge that the English police planned to arrest him and that that was the purpose for delaying service or disclosure of the report, then it seems to me that the court itself, and I myself, would become implicated in a form of entrapment. I am not in the circumstances of this case willing to do that. However, today, and in the light of the position as described in the second statement of the Detective Sergeant, the highest it is now put by the police is that there should be a relatively short delay in service or disclosure of the CAFCASS report until such time as, in New Zealand, which is his home country of which he is a citizen, the father has been interviewed and, if they think fit, arrested by the New Zealand police. After some discussion today, the police now modify their application to ask that service and disclosure of the CAFCASS report be delayed until 15:00 hours next Friday, 11 May 2018. I am willing to do that.
16. Mr Carroll, by his most helpful position statement dated 4 May 2018 for this hearing, has drawn my attention to various well-known authorities on the circumstances in which, most exceptionally, a court may give permission for some fact or facts, or some document not to be disclosed to another party to the proceedings. Although those authorities are relevant to this application in a background way, it does not seem to me that they are closely in point.
17. What I am being asked to do in this case is not to sanction ultimate non-disclosure. Rather, I am being asked to put a temporary brake or delay upon disclosure to both parties of a report which in due course, and before any substantive hearing, will be disclosed in full to both of them. Service of the CAFCASS report is (through no responsibility of CAFCASS) now one week out of time. I am being asked to delay it by one further week. If it is in the hands of the solicitors for both parties by the close of business next Friday, they will still have had it over 10 days before this case is fixed for substantive hearing. Further, and importantly, they will have had it for about a week before, as I have been told, the anticipated travel of the father to England. It does not seem to me that by imposing that relatively short period of further delay, I am significantly impairing any rights of the parents to a fair trial or, indeed, significantly impacting upon their preparation of this case. In any event, I do have to balance against any such impairment or impact the important need in the interests, both of justice generally and of this child (who claims to be a victim) specifically, that an effective police investigation can take place both here and in New Zealand.
18. I add that, provisionally, it seems to me inevitable that there will not now be a full and effective final hearing of the father's application under the Hague Convention as early as 23 May 2018 as currently fixed. I have absolutely no idea whatsoever how these police inquiries will ultimately be resolved. I have no idea whatsoever whether the father will actually be arrested, whether in New Zealand or here; still less whether there will be any prosecution. However, it seems an inescapable fact that this child has made certain statements which, at all events, the Detective Sergeant describes as "compelling". This, frankly, whatever the truth of the matter, throws a very large boulder into the pond of these proceedings as currently conceived. It seems highly likely that there will have to be considerable stock taken and that a final hearing as soon as 23 May 2018 is likely to be ineffective.
19. For those reasons, I am willing to take, and do take, the unusual course of making an order today that:

"1. Cafcass must not file or serve, or disclose the contents of, their report upon, or to, either party or their legal advisers before 15.00 hours local English time on Friday 11 May 2018."

20. I will make provision for a transcript of this judgment to be made urgently at the expense of public funds. In the first instance it will be sent only to CAFCASS, but by my order today I will request CAFCASS, immediately after they have served their report, also to supply copies of this judgment and of the formal order made today to the solicitors for both parties.
CERTIFICATE Opus 2 International Ltd. hereby certifies that the above is an accurate and complete record of the proceedings or part thereof. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital ____ This transcript has been approved by the Judge