HHJ Vincent’s judgment in Thames Valley Police v F & G [2023] EWFC 28 is a somber reminder of the need to evidence & demonstrate need in cross-jurisdictional applications for Family Court disclosure.
In private law proceedings the Court received a section 7 Report in which the Local Authority Author felt satisfied that the Children had witnessed serious domestic abuse from the Father to the Mother.
The Father absenting himself from a hearing on 20 September 2022 and contended video recordings by the Mother making a number of serious threats were taken ‘illegally’. The Court reviewed the videos and Section 7 Report, thereafter making non-molestation order, listing return date just over a week later which the Father did not attend and at which the Order simply was directed to continue.
Two months later Thames Valley Police applied for disclosure from the Family Court seeking-
'disclosure of statements, documents and as appropriate, testimony that make reference to any covert recordings obtained by Mrs F, and to any threat of harm towards Mrs F by Mr G. TVP also request under practice direction 12G a copy of the final judgement made in the family proceedings.'
There was no supporting statement nor did the Officer in the Case attend Court on the day of the hearing of the application. It also followed attempts by the Mother and her legal team to discover what the Police required and their basis for such, which were said to have been ignored.
Thames Valley in their skeleton argument sought disclosure comprising – “[that which] relates to mitigation provided by Mrs F and the level of risk presented by Mr G towards Mrs F and the children.” seeking disclosure on three alternate grounds –
- PD12G which allows sharing of certain information with an Officer to further investigation;
- FPR r.12.73(a) which permits disclosure to various classes of person including under (viii) ‘a professional acting in furtherance of the protection of children’ ; or
- FPR r.12.73(b) which provides for release of information held in private ‘where the court gives permission’
Dismissing the application HHJ Vincent held as to the first two grounds of application –
- PD12G provided a party may communicate to an officer text or summary of the whole or part of a judgment giving in proceedings. It did not create entitlement to receive it (paras 14-15);
- R.12.73(a)(viii) was not engaged, the application was in furtherance of criminal investigations not the protection of children (para 17).
HHJ Vincent was made aware Thames Valley appeared to already have the following information –
- Minutes of the MARAC meetings which they attended
- Lifetime restraining order;
- Prohibited Steps Order;
- Final Order;
- Non-molestation order;
- CCTV Footage that was reviewed by the Local Authority on which their conclusion that there had been abuse perpetrated by the Father against the Mother and Children was made;
- Audio recordings obtained by the Mother and provided to the Police
- The Section 7 Report;
- Police interview of the Mother under caution in which she admitted using spyware to obtain recordings of the Father;
- The witness statement taken from the Father by Thames Valley
The Court was also confident the Local Authority would, if requested, share further documents pertaining to its involvement with the Family.
HHJ Vincent, directing payment of the Mother’s costs, concluded she would not give permission-
- It was improper to exercise discretion without evidence – a supporting statement was not a technicality, a respondent should know the nature of the application they face (para 34);
- Without clear understanding of the investigations, the Court could not assess the documents which were relevant to the investigation and reasons given for further information either as ‘mitigation’ or ‘corroboration of defence’ were not explained (paras 36 – 37);
- There appeared to be sufficient information available to Thames Valley already for it to carry out its functions (para 38);
- Though the checklist in re C (a Minor) (Care Proceedings: disclosure) [1997] 2 WLR 322 had been relied upon, this was a public law authority and it had not been explained how this applied to private law proceedings (para 39);
- Importantly the Court was concerned with the impact on the Parent’s Children, noting –
“A key part of the balancing exercise would be to consider the impact upon the welfare of the children of disclosing material that was regarded within the Family Court as confidential. The documents would be disclosed to the police, to the Crown Prosecution Service, and the application is for the material to be used within any subsequent criminal proceedings, so they are likely to end up in the public domain. Any impact upon the mother is likely to have a significant impact on the welfare of the children. The application has no regard to this at all, and invites me to disclose documents merely on the basis that they may be relevant to their investigation” (para 40).
For a full copy of the decision, please see - https://www.bailii.org/ew/cases/EWFC/HCJ/2023/28.html
