In the recent case of Re H (A Child) (2018), presided over by the then President of the Family Division, Sir James Munby stated that the Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings (the Protocol) was not working as it should and might need to be updated and improved.
In Re H the care proceedings had begun after a child had suffered injuries. A family court concluded that the father had inflicted the injuries and the mother had no culpability. However, the police and Crown Prosecution Service prosecuted both parents. The criminal proceedings were protracted and both parents were acquitted. The mother’s bail conditions had seriously hindered the assessment of her capacity to look after her children and applications to vary the bail conditions were opposed by the prosecution and refused by the Crown Court. The mother lost her accommodation and there was a delay in her finding suitable alternative accommodation.
As long ago as 17 October 2013, the Protocol was issued by Sir James in conjunction with the then Senior Presiding Judge of the Family Division, Lord Justice Gross and the then Director of Public Prosecutions, Keir (now Sir Keir) Starmer QC. It together with the protocol on Communications between judges of the Family Court and Immigration and Asylum Chambers of the First-tier and Upper Tribunals was designed to facilitate the exchange of documents and information between the family justice system on the one-hand and the criminal justice system on the other.
The reason for the Protocols is perhaps obvious but emphasised in Re H by Sir James as follows:
“Underpinning both Protocols is a vitally important point which I have repeatedly made, most recently in Re W (Children); Application by SW (No2) (2017) EWFC 74, (2018) 1 FLR 1601, para 7:
"....Subject always to the imposition of any necessary safeguards and conditions, family courts should not stand in the way of, and should, on the contrary, take all appropriate steps to facilitate, the proper administration of justice elsewhere. This principle is well recognised in the authorities both in relation to the criminal justice system and in relation to tribunals as varied as those dealing with medical disciplines and criminal injuries compensation. It is, of course, equally applicable in relation to the civil justice system... [and] in relation to proceedings or proposed proceedings before the European Court of Human Rights.”
“I would anticipate ready recognition of the reciprocal principle by the criminal, civil and tribunals justice systems.”
Sir James made reference in Re H to his impression, based upon his own judicial experiences and “upon too much anecdotal information” that the Protocols were not working as they should and as they must. He gave an example of a care case which came before him, in which a letter written by the legal department of a police force to the court stated that it would not comply with the court’s order for disclosure of information held by the police because in the view of the writer of the letter (on behalf of the police) it was inappropriate to do so.
Sir James commented:
“Without having thought it necessary to require the hapless writer of this astonishing missive to be brought to court to provide an explanation, it would not be fair to assume that this was impertinence or defiance rather than simple ignorance and incompetence; but either way it is deeply troubling that any police force can have thought that this was an appropriate response to an order of the court, even if it was a family and not a criminal court.”
Sir James reinforced the point (which he described as very simple) that any public authority to whom a court order is directed must comply with it unless it appeals the order or makes an application for it to be discharged or varied, if it was not in court when it was made, and not to do so would place that public authority on the wrong end of proceedings for contempt of court.
It must be assumed that the reference to “any public authority” not only encompasses the police but other public authorities such as the NHS and its health and care organisations.
Sir James went on to set out some suggested steps to try to improve matters.
- Improving understanding across the jurisdictions of how the others work.
- Introducing mechanisms to facilitate collaborative, joined-up or even joint decision-making.
- Ensuring by judicial “ticketing” and “cross-deployment” that judges with expertise and experience in the family court can also sit in other courts and tribunals.
- In cases where there are parallel proceedings in different courts involving the same child or family, listing the cases simultaneously before suitably “cross-ticketed” judges.
In conclusion, Sir James is advocating better understanding and cooperation between the various judicial systems so as to ensure better outcomes all round for children and their families. Although securing criminal convictions in child abuse cases is vitally important, for a number of reasons, the police and the CPS must be encouraged to think of the bigger picture and not be motivated to secure those convictions at the expense and in isolation of everything else, that is trying to be achieved, in what can be extremely distressing and upsetting circumstances.
Whether the approach in these types of cases can be better informed and more joined–up between the courts and public authorities and agencies involved remains to be seen.
We leave you with a final thought from Sir James:
“Much of the time what is required is not so much the provision by the family justice system of information about the family court proceedings in the narrow sense but, rather, a more detailed explanation, for the benefit of the police or the CPS or the Youth Court or Crown Court, as the case may be, of the family court’s thinking; of what the family court is trying to achieve, and why; and of the family court’s objectives for the child and the family, whether in the context of judicial case management or in its detailed care planning.”