The test formulated by the Court of Appeal, Civil Division, in Re C (a minor) (care proceedings: disclosure) [1996] 2 FLR 725 (concerning the factors relevant to the determination of an application for disclosure to the police) remained fit for purpose and did not require revision. Applying that test, the Court of Appeal, Civil Division, dismissed the appellant parents’ appeal against an order made in the course of care proceedings, directing that the second respondent local authority serve a copy of the parents’ position statements and their statements of evidence, that had been filed in the proceedings, on the local police force, in circumstances where the authority contended that the subject children were exposed to significant harm, given that the parents had spent some four years or more in Syria, and were believed to have aligned themselves with a radical terrorist organisation during that time. The court ruled that the appellants had failed to establish their central ground of appeal based on the ‘right to silence’ and the ‘privilege against self-incrimination’.

[2019] All ER (D) 11 (Aug)

*Re M (Children)

[2019] EWCA Civ 1364

Court of Appeal, Civil Division

Sir Andrew McFarlane P, Simon and Nicola Davies LJJ

31 July 2019

Family proceedings – Orders in  family proceedings – Disclosure to police

In the course of care proceedings in respect of two children (aged three and two respectively), the second respondent local authority asserted that the threshold criteria under s 31 of the Children Act 1989 (ChA 1989) had been satisfied on the basis that the children had been, or were likely to be, exposed to significant harm as a consequence of the activities of their mother and father (together, the parents), in circumstances where the parents, both of whom were UK citizens, had spent the past four years or more in Syria and were believed to have aligned themselves with a radical terrorist organisation during that time.

Following an application for disclosure, an order was made, directing that the authority serve a copy of the parents’ position statements and their statements of evidence, that had been filed in the proceedings, on the local police force. 

The parents appealed.

(1) The court considered the correct approach when deciding an application for disclosure of material to the police in a case such as the present one. The issue concerned a party’s right, in civil proceedings, not to be put in the position of making an admission of criminal conduct: the privilege against crimination or self-incrimination.

The parents, who had declined to answer questions put to them by the police in interview, submitted that the police had been unable to establish a prima facie case that a crime had been committed and that disclosure was, therefore, necessary. They further submitted that the judge had given no real, or that he had given insufficient, weight to their right to silence. 

The test formulated by the Court of Appeal, Civil Division, in Re C (a minor) (care proceedings: disclosure) [1996] 2 FLR 725 (concerning the factors relevant to the determination of an application for disclosure to the police) remained fit for purpose and did not require revision (see [29], [68], [70] of the judgment).

In the Family Court, it was the privilege against self-incrimination which directly applied, rather than the right to silence, which did not. In the circumstances, rather than misdirecting himself, the judge had been correct, as a matter of law, in holding that granting the application would not breach the parents’ right to silence (see [64] of the judgment). 

An analysis of the privilege against self-incrimination in the present case could not be conducted in a vacuum and without reference to the evidential reality of the case, which was that the parents’ witness statements and position statements did not contain any material that might incriminate either of them in any criminal activity. Without some indication that the relevant material might incriminate either parent, their counsels’ legal argument had to fail. The judge had been justified in attaching ‘particular weight’ to that aspect and in holding that it was ‘an important factor’ that the material simply gave an account of ordinary activities when in Syria, with no direct involvement in the conflict (see [65] of the judgment). 

Even where, in another case, the material that had been 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 (see [66] of the judgment).

While it would be appropriate, in cases of alleged radicalisation or terrorism, for express regard to be had to that element, it was of note that the judge had, in fact, attached ‘particularly substantial weight to the public interest in such offences being investigated’, without a bespoke additional paragraph having been added to Re C. There was, therefore, no need to add further wording to the Re C test (see [69] of the judgment). 

In the circumstances, the parents had failed to establish their central ground of appeal based on the ‘right to silence’ and the ‘privilege against self-incrimination’ (see [67], [86], [87] of the judgment).

R v Hertfordshire County Council, ex p Green Environmental Industries Ltd [2000] All ER (D) 199 considered; C (a minor) (care proceedings: disclosure), Re [1996] 3 FCR 521 applied; R v Slaney [1832] 172 ER 944 considered; R v Garbett [1847] 169 ER 227 considered; Bank Mellat v Her Majesty’s Treasury [2013] 4 All ER 533 applied.

(2) Whether there was a distinction between a position statement and a witness statement. The parents contended that position statements were not ‘evidence’ and that, as a matter of principle, they should not be disclosed to the police.

Further, consideration was given to the President’s Guidance on Radicalisation Cases in the Family Courts (8 October 2015) (the President’s guidance, see [42] of the judgment). The parents submitted that, if the proposed guidance were applied to the present case, the application for disclosure should have been dismissed given the absence of evidence pointing towards likelihood of charge, the speculative nature of the application, the fact that other investigative routes were still available and that directing disclosure gave rise to substantial unfairness, and was not justified.

ChA 1989 s 98(2) applied to ‘a statement or admission made in such proceedings’. The word ‘statement’ was not further defined and was not confined to witness statements. A position statement would normally focus on the forensic process and was unlikely to be the sole source of material that was of evidential value, which was not otherwise also in a format that could be properly adduced as evidence in the proceedings. In those circumstances, the content of a position statement might, on the facts of any given case, be held to be of insufficient relevance to any police investigation to justify disclosure (see [72] of the judgment).

In the present case, while the parents’ position statements did not seemingly add any further information to that which was contained in their witness statements, there was no reason, in principle or in law, for holding that there was a distinction between a witness statement and a position statement, and no ground for holding that the judge had erred in ordering disclosure (see [73] of the judgment).

The President’s guidance offered important practice guidance for courts dealing with cases where radicalisation or terrorism was alleged or suspected. It was not intended to be,  nor did it purport to be, anything more than practice guidance. With respect to issues of disclosure, the high-water mark in the guidance amounted to no more than encouragement to courts to extend ‘all proper assistance’ to those involved in the criminal process. The content of the guidance could have no impact on the substantive law which was contained in the relevant statutory provisions and caselaw, in that context, in particular, Re C (see [74] of the judgment).

In the present case, although the judge had been referred to the guidance during submissions, he had not referred to it in his judgment and there was no indication that he had relied on it, at least in any manner that might have led him into error (see [75] of the judgment).

(3) Whether, applying the Re C test to the present case, the appeal should be allowed.

The judge had rightly attributed significant weight to the factual context which, as well as indicating a reasonable belief as to likely harm to the children, underlines the importance of supporting the investigatory agencies involved in protecting society at large (see [80] of the judgment).

In addition, although it was not a matter to which the judge had referred in his judgment, a court was entitled to have regard to the fact that the Home Secretary had concluded that ‘Condition A’ and ‘Condition B’ of s 2 of the Counter-Terrorism and Security Act 2015 had been met, on the basis that he ‘reasonably suspects’ involvement with terrorism-related activity outside the UK and that it had been necessary to impose a temporary exclusion order ‘for purposes connected with protecting members of the public in the UK from a risk of terrorism’ (see [82] of the judgment). 

In furtherance of the substantial weight that he had attributed to the importance in the investigation of potential serious criminal activity, the judge had been justified in relying on factor 5 identified in Re C, namely that barriers should not be erected between one branch of the judicature and another (see [29], [83] of the judgment).

Further, the judge had been justified in concluding that it was very much in the interests of the children for the investigation to move forward to a conclusion, one way or the other, and that to refuse the disclosure application would introduce yet further delay in concluding the family proceedings (see [84] of the judgment). 

In all the circumstances, there was no basis for holding that the judge had fallen into error in the attribution of weight in one factor or another or, more generally, that his conclusion on the issue of disclosure had been wrong in terms of proportionality. Despite the factual circumstances of cases such as the present, which were outside the norm, an order for disclosure to the police might nevertheless be justified and, for the reasons given by the judge, had been so justified in the present case (see [85]-[87] of the judgment).

Appeal allowed.

Tim Moloney QC and Chris Barnes (instructed by ITN Solicitors) for the father.

Dijen Basu QC (instructed by Police) for the first respondent.

William Tyler QC and Catherine Jenkins (instructed by the authority) for the authority.

Deirdre Fottrell QC and Laura Briggs (instructed by Burke Niazi Solicitors) for the mother.

Hannah Markham QC and Ben Mansfield (instructed by Dodds Solicitors LLP) for the children.

Carla Dougan-Bacchus - Barrister.