Cumbria County Council v M & Ors

This is the second and final published judgment in these family proceedings. The first is reported at [2014] EWFC 18.

The proceedings, which concern child A, were thought to have ended in July 2014 when this court determined that her father was responsible for the death of her baby brother K. However, in January 2016, the matter was rightly restored for further consideration by A’s Children’s Guardian in the circumstances described below.

This was necessary because of the admitted failure of Cumbria Constabulary to comply fully with orders requiring the disclosure of all material arising from the police investigation into K’s death. A great deal of material was in fact supplied in late 2013 and early 2014, albeit the process was not as smooth as it ought to have been. On one occasion, the second most senior investigating officer attended a hearing before me with a legal adviser and on a later occasion a witness summons had to be issued to ensure that (so it was then thought) all information had been supplied.

However one piece of information had not been supplied and did not come to the attention of the parties to these proceedings until September 2015. This was a covert recording made by the police in the parents’ home on 27/28 September 2013, immediately after their release on bail following their arrest. The recording had been authorised under the Regulation of Investigatory Powers Act 2000. It is of poor quality but it includes a conversation involving the mother that on one interpretation might conceivably have been relevant to the accounts given by the parents about K’s death.

After the 2014 family court hearing, the police reinvestigated and the father was charged with manslaughter. It was only at an advanced stage in the criminal disclosure process that the Crown Prosecution Service, having itself become aware of the recording, advised that it should be disclosed to the defence. Prosecution counsel also appreciated that it should have been disclosed to this court in 2013 and so advised. At that point the parties to the family proceedings and the court were informed and in due course the Guardian made his application.

In November 2015, the father stood trial and, having exercised his right not to give evidence, was acquitted by the jury. In the meantime, the 2014 judgment had not been published so as to avoid prejudicing the criminal trial and, latterly, to await the resolution of the issues surrounding the recording.

The Guardian’s application has had three purposes: to make the court aware of what had occurred; to raise the possibility that this court’s findings may need to be reopened; and to establish whether there were any safeguarding issues affecting A.

Directions were given, joining the police as a party and directing the filing of evidence by it and by the local authority. In response the Constabulary has filed a full account of events from seven witnesses: two officers involved in the 2013 investigation (including the senior officer who appeared before me), two officers who were respectively concerned with the quality of the covert recording and with record-keeping, one very senior officer who was responsible for the reinvestigation, and two legal advisers.

There is also an up-to-date statement from A’s social worker.

Having read this evidence and heard submissions from the parties, I address the three matters that arise.

The first issue is whether the findings of the family court should be revisited in light of the disclosure of the recording. The threshold for reopening is that there is a real reason, based on solid grounds, for believing that a different outcome might result. Having studied the issue closely, none of the parties applies for this to happen. For my own part, I am independently satisfied that the further information falls far short of crossing the threshold for reopening the case. In particular, the confused and partially audible recording does not cast significant doubt upon the mother’s evidence or supply any plausible alternative explanation for K’s injuries. True it is that the father has not been convicted of any offence and continues to deny responsibility for K’s death, but that is no reason for this court to reconsider its conclusions.

There will therefore be no further hearing in this court in relation to these matters.

In relation to A’s welfare, I am satisfied on the evidence of her social worker, accepted by her Guardian, that she is doing well and that there are no safeguarding concerns.

Turning to the non-disclosure, I find that the nub of the matter is as follows. The existence of the recording was known to the three investigating officers in 2013, but they did not consider that it had any evidential value. It should have been obvious, in particular to the officer who appeared before me just four weeks after the recording was made, that it had to be disclosed, but it was not. Because of its special status, it was not held on the case file. The Constabulary’s lawyers and the officers who were not involved in the investigation process were therefore not aware of its existence until a much later stage.

The efficient process of disclosure between the criminal and family jurisdictions is essential to the proper administration of justice. It is governed by protocols and on occasions reinforced by court orders. The criminal and family courts must be able to rely on assurances that all relevant material has been disclosed, though in some cases they may have to resolve claims of public interest immunity.

In this case, the process took place against a background where concerns had already been expressed about the investigation into K’s death. Moreover, there was an unusually drawn-out sequence of events surrounding police disclosure. In those circumstances, the failure of Cumbria Constabulary to disclose the recording was particularly regrettable. It has led to further anxiety for the mother and significant extra expense for the public.

However, it is important to record that there is no evidence to suggest that the recording was withheld from the court deliberately or that there was any bad faith on the part of the officers who were responsible. I also note the expression of regret made on behalf of the Chief Constable, reflected in the attendance of the Assistant Chief Constable at this hearing, and the assurances that lessons have been learned from this unhappy episode. In the circumstances, there is in my view nothing to be gained from any further action by the family court. These proceedings are accordingly concluded.