The Court of Appeal has held in Re M (Children) (Disclosure to the Police) [2019] EWCA Civ 1364, that the Re C test for disclosure of material from care proceedings to the police remains good law after 23 years, and in the light of the Human Rights Act 1996, but with the qualification that disclosure must be necessary and proportionate.

The Issue

Increasing numbers of British citizens are returning to the UK, having spent time in Syria. Some of them are suspected of terrorism related activity. A significant number return to the UK with their children and, as a result of the risks to which their children have been exposed in Syria, they enter the care system.

In care proceedings, s.98(1) of the Children Act 1989 removes a person’s privilege against self-incrimination. S.98(2) then provides that a statement or admission that they give in the proceedings shall not be admissible against him or his spouse or civil partner for an offence other than perjury.

The effect of s.98 is that people who have relevant evidence to give (e.g. about harm that has come to a child) are compelled to give a frank account, even if that account would tend to incriminate them or their spouse. As a result, the police often apply to the Family Court for disclosure of transcripts of evidence or witness statements.

The usual case involves care proceedings instituted after there has been serious harm to (or the death of) a child and which concern the (surviving) child(ren). In those cases, the police will, of course, know what offences have been committed but they may not know which family member is responsible. The fact that a family member has admitted, to the Family Court, causing harm to a child, will enable police to target their inquiries more narrowly, focussing on that family member.

For 23 years, the Family Court has determined police disclosure applications by following principles set out in a judgment of the Court of Appeal handed down on 31st July 1996, before the Human Rights Act 1998 was passed – In Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 (better known to family lawyers as Re EC (Disclosure of Material) [1996] 2 FLR 725).

The facts of Re M (Children) (Disclosure to the Police) [2019] EWCA Civ 1364 were very different from cases involving physical harm to children. It represented an opportunity for the Court of Appeal to revisit In Re C, as well as considering more generally the position of those returning from Syria, suspected of terrorism related activities, and entering the Children Act care system.

The facts

In about 2014, a man and a woman travelled to Syria against published Foreign Office advice. They stayed there for about 3 or 4 years and became parents to 2 children. In November 2018, it came to the attention of the British authorities that the family were being held in immigration detention in Turkey. In response, and with the requisite permission of the High Court, the (then) Home Secretary imposed on a Temporary Exclusion Order on them, pursuant to s.2 of the Counter-Terrorism and Security Act 2015.

The family arrived back in the UK at Manchester Airport on 9th January 2019. The parents were arrested by police, pursuant to s.41 of the Terrorism Act 2000. When questioned, the parents exercised their right to remain silent. Their children were taken into police protection.

The local authority began care proceedings and the Family Court made interim care orders. The parents gave witness statements, as part of the evidence required of them by s.98. Their lawyers submitted position statements.

The police sought disclosure from the Family Court proceedings (from the local authority) of these documents. The parents resisted disclosure, arguing that, unlike the usual cases involving physical harm to children, the police could not point to prima facie evidence that the parents had committed any offence. They complained that the disclosure request was a fishing expedition which breached their right to silence, which they had exercised when questioned, as well as their Article 8 right to respect for their private and family life.

At first instance, Keehan J relied on the principles set out in In Re C. The parents criticised In Re C as (1) setting the bar for disclosure to police so low as to result in disclosure to police being routinely ordered in every case, (2) being out of date because it pre-dated the HRA, and so (3) infringing their Article 8 right. They argued that disclosure should not be ordered unless the police were able to make out a prima facie case on the evidence that an offence has been committed, pointing out that this test will always be satisfied met the much more common cases case involving physical harm to a child. Obviously, in cases involving those returning with their children from Syria, such a hurdle would be very difficult for the police to surmount.

The In Re C factors

In In Re C, Swinton Thomas LJ set out 10 factors, each of whose importance varies from case to case:-

"In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case.

(1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.

(2) The welfare and interests of other children generally.

(3) The maintenance of confidentiality in children cases.

(4) The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of section 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.

(5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.

(6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.

(7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.

(8) The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools etc. This is particularly important in cases concerning children.

(9) In a case to which section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.

(10) Any other material disclosure which has already taken place."

The Court of Appeal rejected the parents’ argument that that the police had to show a prima facie case that a crime had been committed. Although the usually encountered cases will involve crimes very clearly having been committed against children, there is no threshold requirement to make out a prima facie case.

The Court rejected the argument that the parents’ right to silence had been infringed, accepting the distinction drawn by the Chief Constable between the right to silence (which the parents had exercised) and the privilege against self-incrimination (which has been removed by s.98 – with linked safeguards).

The Court held that the test set out in In Re C remains good law and HRA compliant. That case is relied upon regularly up and down the country with no evidence that it causes any difficulty in practice.

Importantly, the Court explained that no modification to the test was required (whether to comply with Article 8 or otherwise) but, their judgment subtly added this qualification, which should be borne in mind in future, at para 82 of their judgment: “applications for disclosure … should only be granted if the criteria in Re C are satisfied and it is necessary and proportionate to do so”. That proviso will remind judges (if any reminder is necessary) of the need to comply with Article 8(2).

The future?

The problem posed by those returning to the UK from Syria with children will likely increase over the coming years and similar cases can be anticipated.

The parents have sought permission to appeal to the Supreme Court of the United Kingdom. For now, the In Re C (or Re EC (Disclosure of Material)) test is safe – albeit with the Court’s reminder that disclosure should only be granted if it is necessary and proportionate to do.

Dijen Basu QC represented the Chief Constable of Leicestershire Police.