Fri, 05 Mar 2021
In cases involving child abuse or neglect or more serious injuries to children, criminal proceedings are frequently foreshadowed by family proceedings. It is also an issue which arises commonly in cases involving domestic violence. It may be that it assists the criminal proceedings to rely on documentation, evidence and judgments from family proceedings.
There is a specific protocol that must be applied by criminal practitioners seeking to rely on material from family proceedings. Any proceedings involving children or that are undertaken in the family court are inherently confidential and nothing can be relied upon, no matter how a criminal practitioner has come upon it, without specific permission for it to be disclosed into criminal proceedings. To do so without this permission would be to be in contempt of the family court. The only exception falls under Family Procedure Rule (FPR) 12.73 which provides any party to family proceedings the right to disclose to the police or the CPS any element of judgment to enable a criminal investigation or allow the CPS to discharge its functions, notably, even in this circumstance this cannot be disclosed to any other person without the express permission of the family courts.
When an application has been made for permission to disclose information from family proceedings the leading authority the family court will consider is Re C (A Minor)(Care Proceedings: Disclosure)  2 WLR 322 sub nom Re EC (Disclosure of Material)  2 FLR 725. It sets out a number of factors for the court to consider and balance when deciding whether to disclose information including:
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 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 cooperation 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 the 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
Any application needs to be made on notice to the parties within the proceedings from which disclosure is sought. They have the right to attend any hearing and make submissions on the issue. If the application is successful then the applicant will need to draft an order listing the documents to be disclosed and this should be lodged with the court to be sealed. If the sealed order is required urgently – for example, the trial date is approaching, then it is advisable to ask for it to be sealed at court and for the applicant counsel to wait for a copy of it as otherwise, it will take approximately 4 weeks for the sealed copy to be received by the CPS.
Family witnesses are compellable and they are not excused from answering questions in cross-examination on the basis it may incriminate them. It is important for practitioners when considering disclosure received to look for a s98(2) warning which it is explained to the witness that they are required to answer questions even if this could result in incriminating evidence against them or their spouse, however, it cannot be relied upon except in prosecutions for perjury. However that it can be disclosed to the police and they could be asked questions about what they said in family proceedings in any criminal trial. The failure for this warning to be provided is a consideration, but not a barrier, to the disclosure of material (Re X and Y (Disclosure of Judgment to Police)  1 FLR 1218 at [33-34]).
For further information see Re C (A Minor)(Care Proceedings: Disclosure)  2 WLR 322 sub nom Re EC (Disclosure of Material)  2 FLR 725 and Re X and Y (Disclosure of Judgment to Police)  1 FLR 1218 at [33-34].