The “long arm” of the police - how “confidential” are family proceedings? “Not very” seems to be the answer in a recent Court of Appeal decision, writes Adam Smith.
In M (Children) [ 2019] EWCA Civ 1364 Sir Andrew McFarlane upheld Keehan J’s decision to disclose the parents’ initial statement and position statement to the police following the initial interim care hearing.
In family proceedings parents are advised that their evidence is confidential to those proceedings. They are encouraged to be open and frank and to understand that their children’s interests are the Court’s main concern.
But something seems to be eroding these principles, a trend set since the case of Re H (Children)  EWCA.
The Court of appeal approved the test from Re C (see below) and gave it the “fit for purpose” badge. The decision should be seen in the context of this being a police terrorism enquiry.
The case involved two children aged 2 and 3, born in Syria to parents who were UK Citizens. The parents had travelled to Syria in 2014 against FCO advice, and met there.
The family came to the attention of the UK authorities in November 2018 when they were in a detention centre in Turkey, intending to travel to the UK. The Home Secretary made a Temporary Exclusion order against the father.
The family returned to the UK in January 2019. The parents were arrested under S. 41 of the Terrorism Act 2000, interviewed and subsequently granted bail. The children were placed in foster care initially under police protection.
On 11 January a hearing took place for an application for interim care orders. The threshold was pleaded on the basis of the harm the children were likely to have been exposed to whilst in Syria. The parents did not contest the application, with an interim care plan for placement with grandparents.
On 1 February the police investigating potential criminal activity by the parents made an application to the Family Court for disclosure of the parents’ witness and Position statements. The application was heard by Keehan J on the 8th April, who granted disclosure to the police.
The parents appealed.
Starting point of Confidentiality
The Administration of Justice Act 1960 (S12(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 the Adoption and Children Act 2002; or
iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”
In family proceedings there is no right against self- incrimination.
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 to him in the course of giving evidence
on the ground that doing so might incriminate him or his spouse or civil partner of an offence.
(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his souse or civil partner in proceedings for an offence other than perjury"
“Safe Space” of the family court?
So the family court provides a “safe space” for everyone to be honest, concentrate on the subject children without the fear that what is said ending up in the hands of prosecuting authorities?
No, afraid not :
Family Procedure Rules 2010 Rule 12.73(10)(b) provides that
"For the purpose 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 ..where the court gives permission”
The Rules also provide for the police to have access automatically to the court’s Judgement. In any event with the move to greater transparency in the Family Justice system, anonymised Judgements will be available to the public.
Principles relating to disclosure to the police
In M all parties accepted that “despite the passage of 20 years” the leading judgement in Re C (a minor) (care proceedings) ( disclosure)  Fam 76 remains good law “ to which all levels of the family court regularly turn”. It remains “fit for purpose” despite the father’s legal team commending an alternative test, of Peter Jackson LJ in Bank Mellat v HM Treasury  3 WLR 179.
It is noted that the authority dealt with the FPR 1991 R4.3 which were “slightly different” from the 2010 rules ( but such difference as “not material.”) [If only the CA had said that in Re H [ 2009] above we would not be heading down this road!]
In Re C Swinton Thomas LJ identified the ten factors which are likely to be relevant when determining an application for disclosure to the police :
(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 section 98(2) applies. The underlying purpose of section 98 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 given 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, schools etc. This is particularly important in cases concerning children.
(9) In a case to which section 98(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.”
What can the police do with the material?
The fact that police have acquired evidence in the family proceedings does not automatically mean that they can rely on it, because the rule against self- incrimination still applies- anything incriminating is still not admissible in criminal proceedings. (S 98 above ).
Keehan J felt his order for police disclosure would have a limited impact “because the police would only use the information as a guide and [to] inform their investigative process.”
However, the police can in fact rely on the material in a rather circuitous way…
As McFarlane says at Para 25:
"an issue may arise as to the extent to which the prosecution may rely on a chain of enquiry deriving from inadmissible evidence and answers disclosed to the police. If the evidence and answers are put to the witness during a police interview, the witness scan refuse to comment and neither the question nor the “no comment” answer would be admissible. A further issue may arise if the further questions are put that are founded on answers or evidence that are inadmissible. The admission of such answers or refusals to answer will depend on the circumstances and is not susceptible to any broad statement of principle”
So what does that mean? Swinton-Thomas LJ in Re C says:
The judge conducting the criminal trail will exercise his discretion as to whether to admit in evidence any further admissions made in the care proceedings and would obviously bear in mind when doing so the provision of S98 and the warning to the accused person in that care proceedings.” [‘The warning”, appears of little practical value. The witness has to answer the question- and there can be no guarantee of confidentiality.]
McFarlane LJ reassures ( Para 27)
Some protection is provided within criminal proceedings with respect to unfair evidence by Police and Criminal Evidence Act 1984, s 78:
“78(1) in any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.”
Plainly the less reliant on compelled evidence, the less any unfairness there will be, but beyond that it is unnecessary to go.
The tension was relied on by father’s team in M who argued that “the element of compulsion within family proceedings amounts to a breach of the right to silence in circumstances in where the police have no similar power to compel a parent to answer….where a couple do not have children, the police could not obtain evidence by this means.”
Section 119 of the Criminal Justice Act may well have eroded the protection available under S98(2)- making previous inconsistent statements admissible in criminal proceedings
Time does not permit (as I sit at the dining table on the first day of my holiday in Crete) to delve into the interpretation of S98 CA in the Crown court, but I would commend Prof Susan Edwards article:
“The self-incrimination privilege in care proceedings and the criminal trial and ‘shall not be admissible in evidence’", Journal of Criminal Law (2009) 73 JCL 48-68
The relevance that this was a potential “Radicalisation case”?
Keehan J had made clear that “ the investigation of alleged offences contrary to the Terrorism Act 2000 established “particularly substantial weight to the public interest in such offences being investigated.”
Keehan J also had an eye to the fact that the police were going to be in the best position to investigate this matter - evidence which would ultimately inform the care proceedings. (para 34)
The Court of Appeal in M gave consideration to the “President’s Guidance on Radicalisation cases in the Family Court” (8 October 2015), which states:
The family courts should extend all proper assistance to those involved in the criminal justice system, for example by disclosing materials from the family court in to the criminal proceedings.
McFarlane LJ dealt with this by recognising that it provided “important practise guidance” – but it “does not purport to be anything more than that." The content of the guidance can have no impact on the substantive law - for this we are to rely on Re C.
The right against “crimination” : the privilege against self incrimination
Mc Farlane LJ made it clear that the “right to silence” played no part in family proceedings. (Para 63, 64)
The privilege against self- incrimination was central - but in this case (sadly, of little relevance) (Para 65):
An analysis of the privilege against self-incrimination in the present case cannot be conducted in a vacuum and without reference to the evidential reality of the case, which is that the parents’ witness statements and position statements do not contain any material that might incriminate either of them in any criminal activity. If the contrary were the case, Mr Moloney’s submissions might begin to gain traction, but without some indication that the relevant material might incriminate either parent, their counsel’s legal argument must fail. Keehan J was justified in attaching ‘particular weight’ to this aspect and in holding that it was ‘an important factor’ that the material simply gives an account of ordinary activities when in Syria with no direct involvement in the conflict.
Even where, in another case, the material that is subject to a disclosure application might contain potentially incriminating evidence, that factor would not establish a complete bar to disclosure. In such circumstances, the court would evaluate the application by giving careful consideration to the Re C factors before determining whether disclosure was necessary and proportionate.
The worrying aspect of this case was that the court decided that the Position statements should be disclosed. As counsel we are required to draft Position Statements prior to any hearing. They are sometimes submitted in a timescale that does not allow full input from the client. They are clearly not “evidence” – as they do not contain a “statement of truth” required of a client's narrative statement.
McFarlane LJ felt it was “a distinction without a difference” ( Para 71) – that S 98(2) spoke of a “statement or admission” – as “statement” was not defined it would include Position Statements. As in any event they added nothing – and were of very limited relevance to the police enquiry.
This case firmly confirms that the Re C test stands the test of time.
The reality is that disclosure to the police will be the rule, rather than the exception.