Re M (Children) (Disclosure to the Police)

Summary

This was an appeal to the Court of Appeal by parents against a decision of Keehan J's in care proceedings, acceding to an application brought by the police for disclosure to the police of the witness statements and position statements filed by the parents.

It is of interest to Court of Protection practitioners as it is concerned with the power of the court to permit access to documents filed within proceedings to a non-party where those documents interfere with a litigant's right in civil proceedings not to be put in the position of making an admission of criminal conduct i.e. the privilege against crimination or self-incrimination (now on a statutory footing – see s.14 Civil Evidence Act 1968).

The parents were British citizens who met in Syria and had two children there. On their return to the UK the parents were arrested under s.41 Terrorism Act 2000 but later released on police bail. The children were taken into foster care and the local authority brought care proceedings arguing that the threshold criteria were met on the basis that Syria 'is currently characterised by violent conflict and the children have either been exposed to this or were at risk of exposure, and as such have suffered emotional harm or been at risk of suffering significant emotional and physical harm'.

The appeal was concerned with the rule against self-incrimination which does not apply in care proceedings as a result of s.98 Children Act 1989, with the important proviso that evidence or answers given in those proceedings are not admissible in any criminal proceedings other than perjury. The leading case on the approach to be adopted by a court when considering disclosure to the police is Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76. This case identifies 10 factors which are likely to be relevant to any such application.

Keehan J granted the police's application primarily on the basis 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." Of particular relevance to the Judge was the fact that the there was nothing in the parents' witness statements, that might be termed an admission of wrongdoing or guilt of any offence. The Court of Appeal upheld the judgment on this basis, adding that 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."

Comment

There is no equivalent to s.98 Children Act in the Mental Capacity Act. Thus, witnesses in Court of Protection proceedings are able to invoke the privilege against self-incrimination as codified in section 14 of the Civil Evidence Act 1968. If incriminating evidence is given in the proceedings, and an application is made for disclosure of it to a third party, the court will consider it against the following legal background:

1. If the proceedings are in private, rules 4.2 and 5.9 of the Court of Protection Rules 2017 give the court the power to determine what material related to the proceedings can be communicated or published to non-parties.
2. If the hearing is in public, third parties can obtain from the court records a copy of any judgment or order given or made in public. If any other documents are sought, an application must be made to the court. The court can only make an order in respect of documents in the court records (rule 5.9). This is not defined in the rules.  However, the Supreme Court recently had cause to consider this phrase in the case of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK [2019] UKSC 38, in which it held that:

The "records of the court" must therefore refer to those documents and records which the court itself keeps for its own purposes. It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court. It cannot depend upon how much of the material lodged at court happens still to be there when the request is made.

3. In both public and private hearings, the court has an inherent jurisdiction to uphold the constitutional principle of open justice. As the Supreme Court held: 'It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.' Thus, if the disclosure is required in pursuit of this principle, the court can order disclosure beyond that provided for in the rules.