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Re A (Children) [2020] EWCA Civ 448

Disclosure of material to the police. Court of Appeal confirms that Re EC remains good law. In respect of the Re EC factors, it is impossible to place the factors in any order of importance; it will vary from case to case.

Background
In care proceedings, HHJ Redgrave made findings in respect of brain injuries caused to J by one of his parents.  The fact finding judgment was disclosed to police pursuant to FPR PD12G. The parties thereafter agreed to the disclosure of an extensive list of documents, including the expert medical evidence and statements of family members.  Agreement could not be reached in respect of five documents: two narrative statements by each parents and the guardian's note of the accounts given to her by the parents. 

At a CMH, in which a number of issues were considered, the court gave a brief ex tempore judgment and allowed disclosure of the five documents.  During submissions, the court was referred to and applied the EC Checklist  (Re EC [1996] 2 FLR 275). 

HHJ Redgrave granted permission to appeal to the father.  The court and parties were unaware of the Court of Appeal decision in Re M (Children) [2019] EWCA Civ 1364 in which it was submitted to the Court that the EC checklist set the threshold for disclosure too low. The Court decided that Re EC remained 'fit for purpose'. 

Appeal

King LJ gives the lead judgment.  She observes that, in Re M, McFarlane P wholly endorsed the continuing role of the Re EC factors.  If follows that Re EC remains good law and it is implicit that the Court of Appeal in Re M rejected the submission that the bar for disclosure was set too low in Re EC.
King LJ made general observations about applications for disclosure:

- These are decisions taken by a judge in the context of a trial of factual issues with which he/she will have become particularly familiar. The Court of Appeal is most reluctant to interfere with judge's decisions made in such circumstances;

- They are dealt with at case management hearings, which often require decisions to be made on a number of issues under pressure of time.  Save in exceptional circumstances, the judge's ruling will be by way of a short, ex tempore judgment. Judges are assisted in that exercise by the Re EC factors.

The father appealed on three grounds, each of which was rejected, as follows:

(1) The judge erred in law in approaching the issue of confidentiality of the evidence on the narrow basis of the confidentiality of the child's identity rather than the wider basis of confidentiality that arises from care proceedings heard in private.

King LJ notes the importance of reading the ex tempore judgment as a whole. It was clear from so doing that the judge had in mind the broad concept of confidentiality.

(2) The judge erred in law by treating as broadly identical the public interest considerations which arise in respect of disclosure of material from police investigations into care proceedings and disclosure from care proceedings into police investigations. 

King LJ determined that the judge did not conflate the two directions of disclosure.  Her specific application of the Re EC factors confirmed that she applied the correct test.

(3) The judge conflated the arguments that disclosure would compromise the parents' right against self-incrimination with whether or not s.98(2) CA 1989 confers a right to silence.

On behalf of the guardian, it was submitted that the trial judge was aware of the meaning of self-incrimination and that it is different from right to silence, but rightly factored in the "evidential reality" of the case, conceding that no s.98(2) warning had been given to the parents.  [King LJ notes, for completeness, that failure to give a s.98 warning is not determinative of an application for disclosure [Re X and Y (Disclosure of Judgment to Police) [2015] 1 FLR 1218]].

On behalf of father, it was submitted that the documents fell into a middle ground, being neither incriminating nor valueless and, in such cases, the court should be particularly careful not to allow disclosure by default.

The court held there is no need to add such a gloss to the Re EC checklist. The judge properly applied factor 7, considering the gravity of the offence and the relevance of the evidence in relation to it.

Decision
King LJ highlighted and endorsed the approach of Swinton Thomas LJ in Re EC: it is impossible to place any of the factors in any order of importance; the importance of the factors will vary from case to case.
There is little confidentiality to lose in circumstances where the police have already received the detailed finding of fact judgment together with all the medical and other evidence. What is left is the parents' inconsistent accounts. They are relevant to the police investigation even though they cannot be used as evidence. On any proper application of the Re EC checklist, an order for disclosure was inevitable.
Appeal dismissed.

Summary by Victoria Roberts, barrister, Coram Chambers

Read the full judgment of A (Children), Re [2020] EWCA Civ 448 on BAILII