Police Disclosure In Care Proceedings - A new burden on the Applicant Local Authority

In the recently reported case of - Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018), which took place in the High Court, Knowles J summed up the problem with police disclosure in care proceedings as- “Simply put, disclosure is requested by those who don't know what there is from those who don't know what is needed. In good faith the police provide what they think the family court needs but the reality is that they are ill placed to judge”.

It is well known from previous case law that the Local Authority has a duty to disclose all material in its possession that is relevant to the subject child, the duty is a high one in law and relates to not only fairness but the consideration of the principle ‘the best interests of the child’. The duty does not simply relate to evidence that supports the Local Authority case but must also be applied to evidence that the parents may wish to reply upon when the Court comes to determine the matter. The burden is firmly placed on the Local Authority to get it right and this case not only reinforces that but takes it a step further. 

Knowles J states the following conclusion at paragraph 45- “….a local authority should take responsibility for ensuring that disclosure provided by the police in proceedings such as these is complete. Anomalies in the disclosure should be brought to the court's attention as soon as possible. To do this properly takes time and time taken has a financial cost. That cannot be avoided given the seriousness of what is at stake for the children and the adults involved in these proceedings. I, like all of those involved in the family justice system, am acutely aware of the financial pressures on local authorities, but I venture to suggest that time taken to resolve any issues about police disclosure prior to the start of the hearing, is likely to save local authorities time and ultimately money”.

Practically this will mean that Local Authority lawyers need to read all of the disclosure from the police as soon as possible, identify what is potentially missing and raise it with the Court and parties.  

The case involved care proceedings where the Court were looking into the death of a child and what it meant for that child’s 22 month old sibling, specifically where she ought to live. The police disclosure from the ongoing criminal investigation was piecemeal and large amounts were disclosed into the care proceedings whilst the Fact-Finding hearing was taking place. The repercussions of this were that there was delay whilst parties considered the evidence and took instructions from their clients in respect of it. Knowles J made a number of helpful and practical suggestions in his judgement (paragraphs 48-50) regarding the order required, building on those made by Francis J in the London Borough of Southwark v US and Others [2017] EWHC 3707 (Fam) case. One example being that the Local Authority ought to complete its protocol request 14 days before they issue care proceedings.

He also suggests at paragraph 53; “An additional step which should take place 5 days prior to any IRH or directions hearing before a fact-finding hearing is for a meeting to take place between the local authority solicitor (with preferably the advocate conducting the local authority's case) and the police disclosure team. The purpose of that meeting should be to check that the police disclosure is complete and to provide an update to the family court as to the progress of the criminal investigation and the prospect of charge and/or criminal trial.” He goes on to say that the information shared at the meeting should be disclosed to all parties and the process fully transparent. Essentially the Local Authority lawyer “should come to the meeting having read and considered what has already been disclosed and having identified any anomalies or problems in the police disclosure”.