Disclosure in family courts: a clash of cultures

In family cases where a court order for disclosure has already been made, Edward Pleeth explains that establishing an effective process within the relevant police unit for either complying with or objecting to the disclosure ordered is crucial.

Police forces frequently find themselves the subject of third party disclosure orders in contested child welfare proceedings. Often the police are in possession of confidential material, the disclosure of which may prejudice a criminal investigation, or be highly detrimental to the interests of another. A failure to appropriately manage disclosure in these controversial situations can lead to delay, multiple court hearings, unnecessary expense and, in more serious cases, damaging judicial criticism of the police. 

In many cases, the first time that the police become aware of an order for disclosure is upon receipt of a letter from the local authority attaching a wide-ranging order for disclosure from a family court judge. The order will invariably include “permission [for the chief constable] to apply to vary this order upon 48 hours notice to the parties”.

Where an order requiring disclosure is received, it must result in immediate action by the police. This will usually involve contacting the legal services department or the police disclosure team. In cases where the police do not oppose disclosure, the priority is to ensure compliance with the timetable for disclosure contained within the order; but how should a police officer respond when such an order is received and disclosure is opposed by the police?

The key is to understand:
•The test for disclosure as applied in family proceedings;
•How to object to disclosure; and
•The process likely to be adopted by the court.
 
What is the test for disclosure applicable in the family courts?

In cases where the police resist disclosure, there must be a robust internal process to evaluate the objection to disclosure. Integral to that procedure is a detailed understanding of the test that a court will apply when determining any issue of disclosure. 

(i) Relevance – The prerequisite for any obligation to disclose documents is relevance: there is no obligation to disclose documents that are not relevant to the issues in the case. In Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, the High Court confirmed that:
“…the first thing that needs to be remembered is… whether the material passes the relevant threshold test for disclosure. This test has had a number of formulations, but one regularly used in relation to it is and remains whether disclosure is necessary for the fair disposal of the proceedings…”

It is therefore essential that the officer dealing with disclosure contact the  relevant local authority to establish:
(1)what the case is about; and
(2)the live issues in the family court proceedings.
The officer’s understanding will need to be set out at the beginning of any statement to the court explaining the reason for non-disclosure. This will enable the court to grasp quickly whether the police have been properly informed as to the live issues in the case; and whether the police have applied the relevance test correctly. 
(ii) Public interest immunity – The courts have long recognised that some documents, while relevant to the issues between the parties, may nonetheless be immune from disclosure on public interest grounds (PII). It is for the police to assert PII, then for the court to weigh up the competing interests that arise. The House of Lords described this process in R v Chief Constable, West Midlands ex p Wiley [1995] 1 AC 274 as balancing “the public interest which demands that the evidence be withheld… against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material… [if] the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted”.

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