Reported Case

Parties should work together to resolve a complex prosecution decision, judge says in a judgment handed down on a Local Authority and A, B, A & B’s mother, A & B’s father and Y (disclosure to MPS, 2021).

Our client was a 15 year-old mother to the baby Y, a child who was born in 2019. Y’s mother and father are A and B respectively. A was 15 when she conceived baby Y. B was 14 when Y was conceived. A and B are brother and sister. Following Y’s birth, the local authority (LA), issued proceedings in respect of Y, and then subsequently, in respect of her parents, A and B. Consequently, this small but close family unit, in respect of whom there has been no previous interest by any statutory agencies, came under the very intense scrutiny of children’s services, this court and the Metropolitan police (MPS). The involvement of the statutory agencies began as a joint venture. Social services and police each have responsibility for the safeguarding of children and the identification of individuals who pose a threat to them.

The MPS made an application for disclosure of ‘all social services records’ in respect of these children on the basis that these documents are necessary in order to inform the ultimate decision, to be made by the CPS, as to whether to pursue a criminal prosecution against B, the 14-year-old father.

The offences considered were under s.13 Sexual Offences Act (SOA) 2003 primarily the sections of the SOA 2003 concerned with sexual activity with a child and s.13 permits the prosecution of a perpetrator who is also a minor.

Essentially, MPS sought disclosure of all material available in these proceedings for onward disclosure to the CPS.

The prosecution contended that there was no doubt that ‘a crime has been committed’ and that there were ‘aggravating criminal factors’ setting it apart from other cases of sexual activity between children. It was argued that the CPS alone had the duty to consider whether it is in the public interest to pursue a prosecution.

The other parties to the case unanimously opposed the application. Our argument, on behalf of our client, was that such a disclosure was not only irrelevant but would have a damaging effect on the children.

Rule 12.73 (1)(b) of the Family procedure Rules 2010 gives the court the power to order disclosure to third parties such as the police.

Her Honour Judge Atkinson decided against ordering the blanket disclosure sought by the MPS and stated ‘….nor will I permit limited disclosure at this stage beyond the information that I set out in the body of this Judgment. The reasons for this are set out below and follow a careful consideration of the factors set out in the case law.’ The court was referring to the test and guidelines already set out in the case of Re: EC (Disclosure of Material [1996] 2 FLR 725) (approved in the recent case of M (Children) [2019] EWCA Civ 1364) outlined, at Paragraph 85, assists with the factors the court should take into consideration when deciding whether to disclose documents originating from family proceedings to the police, thus affirming what is currently the case. That list is not exhaustive and it is impossible to place any of the factors in order of importance, and the importance of the factors will vary from case to case.

Instead, she invited the “MPS and the CPS to read this Judgment and reconsider their respective positions, and whether a charging decision is possible on the information already in their possession supplemented by the additional detail in this Judgment.

“In circumstances in which the CPS is encountering difficulties in properly and fully considering the application of any of the factors in the public interest test then I will consider further the issue of disclosure if an application is made specifying the issues in need of determination.”

In summary, whilst the court has the power to order disclosure, the court should consider the “EC checklist” in deciding whether to exercise this power and order disclosure. Such disclosure should only be ordered insofar as it is relevant to a criminal trial.


Our legal team: Family director Forida Hakim instructing Ruby Sayed, of One Pump Court.

Find full details of this case on Bailii’s website here.