Protocol and Good Practice model: Disclosure of Information in Cases of Alleged child abuse

19 Mar

Many care cases involve concurrent investigation by the police. The stakes for the parents are often high. They are being interviewed by the police in relation to serious crimes: sexual and physical abuse and sometimes murder. They also stand to lose the care of their children. If one is the perpetrator of the abuse, what knowledge did the other have, and what did they do or should have done?

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Many care cases involve concurrent investigation by the police. The stakes for the parents are often high. They are being interviewed by the police in relation to serious crimes: sexual and physical abuse and sometimes murder. They also stand to lose the care of their children. If one is the perpetrator of the abuse, what knowledge did the other have, and what did they do or should have done?

In October 2013 the Protocol and Good Practice model: Disclosure of Information in Cases of Alleged child abuse and linked criminal and care directions hearings was published. It can be downloaded from many websites including www.cps.gov.uk/publications. It came into force on 1st January 2014.

The aim of the protocol, in a nutshell, is to provide a smoother process for disclosure of statements, interviews and reports from the police investigations into the family court and to set out clearer procedure for applications by the police and CPS for documents and transcripts of evidence from the Family Court.

Has the new Protocol removed the difficulties encountered in the past? I think that its aim is to provide for better working relationships between the professionals but it has not removed the tensions which have always existed and which may well continue.

If, as in many cases, the care proceedings are sparked off because of the discovery of injuries to a child or a disclosure of sexual abuse the two agencies involved will have different timescales and timetables. The local authority will have to safeguard the child(ren) and will have to be in court as soon as possible. The Family Court will want to timetable the case through to a fact finding hearing as soon as possible, and we all live with the “26 week target”. On the other hand, the police will only just be beginning to investigate. They may interview the parents straight away; they will also conduct searches, interrogate mobile phones and laptops, attempt to tie down the movement of those involved by looking at CCTV and measuring journey times, even producing TV schedules in cases where the witnesses time events by the marker of whether they had watched East Enders that evening or not.

That produces the first tension: if the local authority relies on the police evidence to prove threshold, then it will not be able to run a fact finding hearing until it has disclosure. On the other hand, the police want to investigate thoroughly and do not want to make disclosure until they have completed their investigations. In many cases, they may be prepared to allow disclosure of statements etc as and when they have them, but not always.

Late disclosure makes preparation of the fact finding hearing very difficult for all concerned. If the Family Court has fixed the dates for the hearing, but disclosure is still being made right up to the commencement of the hearing, it is difficult for the local authority to assess its case and for those acting for the parents to take instructions.

When there is disclosure of the police statements late in the Family Court’s timetable, it is almost impossible to “get your head round” the exhibits from the police and see where they fit in, make sure you’ve tied them up with the originating statement and that you have everything which is or may become relevant to the enquiry by the Family Court. Patience wears thin on both sides, I have no doubt.

Those acting on behalf of the parents in these circumstances are only too aware of the additional pressure on them that their clients are likely to be facing serious criminal charges. However, they and their clients have to meet the case in the Family Court and must give a full account of the events in question to the Family Court. Keehan J has made it very clear that statements must be produced when ordered. Furthermore, the fact that the date for the criminal defence statement is later than the care proceedings statement, is irrelevant and it is not a ground for an application for the time for filing the care proceedings statement to be extended in order to fit in with the timetable of the criminal proceedings. The report of this case is at Local Authority v DG [2014] EWHC 63 (Fam).

There are some cases where the fact finding hearing takes place before the charging decision. Whilst I can understand the need to avoid delay, there is also the need to afford the parents a fair trial and to be able to test all the evidence.

These cases are some of the hardest facing the Family Court. The aim of completing cases within 26 weeks makes them even harder.


Margaret Pine-Coffin

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