Judge orders evidence in care proceedings to be handed to police

Medical evidence filed in care proceedings can be disclosed to
the police for use in potential criminal investigations.

That was the decision of the family division of the high court
on 4 November 2002 in the case of A Chief Constable v A County
Council, AB (A Child) (By His Children’s Guardian SM), DH &
RW. 
The chief constable (CC) applied for the disclosure of all medical
evidence filed within care proceedings concerning a child (AB)
together with a transcript of a judgment given at the conclusion of
a hearing on causation.

The medical evidence in respect of which disclosure was sought
included evidence given by an expert paediatrician (the professor),
and minutes from a meeting of experts.

AB was a seven-year-old boy whose brothers had died when aged
respectively 10 months and three months. The local authority
alleged that neither boy had died from natural causes, and that in
each case the mother had been responsible for the deaths. It was
not suggested that the father had injured any of the boys or had
failed to protect them.

After the judgement, the mother and father had separated and a
care order had been made in relation to AB. At the time of the
chief constable’s application, AB was residing with his father and
rehabilitation with his mother was not contemplated.

The chief constable contended that:

(i) if the mother had been responsible for the deaths of the
brothers, then very serious crimes may have been committed and the
overriding factor for the court was the public interest in
convicting those guilty of very serious crimes against
children;
(ii)   AB’s welfare was not the paramount consideration on an
application for disclosure;
(iii)  no witness in family proceedings benefited from a guarantee
of confidentiality; and
(iv)  the relevant authorities favoured disclosure.
The mother argued that the discretionary exercise identified in the
1997 case of Re C did not point to any particular factor being of
predetermined importance, and that in this case it was not
appropriate to order disclosure.
The professor submitted that:
(i) disclosure would jeopardise future co-operation of parents with
paediatricians which would be detrimental; and
(ii) the welfare principle was being displaced by the claim that it
was more important to protect a parent from possible criminal
proceedings than it was to assist the court in care
proceedings.

The local authority concurred with the chief constable that
disclosure was not unfair to the mother or against AB’s interests,
and that the public interest in prosecuting serious offences
against children was predominant.

Ordering disclosure, the judge held that this was a case in
which the court should pass the relevant medical evidence to the
police because:

(i) looking at the case of Re C, the balancing exercise clearly
came down in favour of disclosure. The claims against the mother
suggested that crimes of an extremely serious nature had been
committed. The medical evidence and the minutes of the experts’
meeting were directly relevant to any police enquiry;
(ii)  the mother had not been frank in the care proceedings, had
not given evidence and had consistently denied any responsibility
for the deaths of the two boys. It was highly unlikely that a
parent in her position would in any circumstances admit to killing
a child. A refusal to order disclosure would not therefore
encourage frankness in others;
(iii)  although the prosecution of the mother might not be in AB’s
best interests, and was likely to be stressful for him and his
family, the weight given to those factors must be reduced to take
account of the resources available to mitigate those adverse
effects.

Comment:

This case means that the police can apply to a care court for
information and then use it within a police investigation into
serious crimes. The judge had been sitting in the 1997 case of Re W
and is very familiar with the arguments used by all parties in this
case. The current line from the judiciary is very clearly that the
police must be allowed to investigate serious crimes against
children, and although they have to ask the care court for the
evidence, that permission is very likely to be given.  

Bernadette Livesey

Human Rights Soilicitor

Walker Morris