Warwickshire County Council v BN & Ors

This judgment concerns Warwickshire Police’s (“the Police”) response to a series of Police Disclosure Orders (“PDOs”) in a public law Children Act 1989 (“CA”) case, and in particular the redactions that the Police sought to impose on the disclosure sought. The evening before the hearing the Police conceded that all the redactions should be removed and therefore, by the time of the hearing at 9.30am on 5 November 2024, the issue had become “academic”. However, in the light of the fact that the case is now in Week 42 and the Police’s position had resulted in both an unnecessary hearing, and a considerable waste of public funds, I decided it was appropriate to produce a short judgment.

The Local Authority, Warwickshire County Council (“the LA”), were represented by Karen Sidhu, the Police were represented by Michael Goucher, the Mother, BN, was represented by Aidan Vine KC and Eleanor Howard, the Father, KC, was represented by Nkumbe Ekaney and Margaret Styles, and the Guardian was represented by Susan Reed.

The facts of the case are of limited relevance, but in broad terms the case concerns a young child (aged 7 weeks) who was presented to hospital on 9 January 2024 with intracranial and retinal haemorrhages consistent with a “shaking” injury. Public law proceedings were commenced by the LA on 17 January 2024 in respect of the child and their older sibling and they have been in foster care since 19 January 2024.

The case is allocated to HHJ Walker, the Designated Family Judge in Coventry. She has made four relevant PDOs: 5 February, 11 April, 22 May and 4 September 2024.

Those orders were all made as Annex H orders under the 2013 Protocol – Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings (“the 2013 Protocol”), although the 2024 Protocol – Disclosure of information between family and criminal agencies and jurisdictions (“the 2024 Protocol”) came into force on 1 March 2024 and three of the orders follow that date.

The contentious order is that made on 4 September 2024, which provided as follows:

“1.

The Chief Constable of Warwickshire Police shall by 4pm on 18th September 2024 disclose to the Local Authority the following information:

i.

Unredacted copies of all disclosure provided to the local authority thus far.

ii.

Audio/video of the parents’ first police interviews on 10th January 2024 (they having been provided already but corrupt and therefore not accessible).

iii.

An itemised schedule of material in respect of the investigation confirming that all material has been provided and if not, why not, and when any PII application will be made.

2.

The Chief Constable of Warwickshire Police shall provide any further evidence/ disclosure obtained during the course of the ongoing investigation on a rolling basis and unredacted.

3.

The Local Authority shall serve a copy of this order on Warwickshire Police together with a letter setting out in respect of the solicitors representing each party the full name of the firm, the full postal address, and the reference at that firm dealing with the matter giving his/her email address and direct telephone number.

4.

The Local Authority shall file with this court and serve on the other parties the above material within 2 working days of receipt.

5.

The information when supplied may be used only for the purposes of these proceedings and must not be disclosed to any third party without the express permission of this court.

6.

The Chief Constable of Warwickshire Police;

a)

SHALL apply to discharge or vary this order, in the event that Warwickshire Police are unwilling to disclose any of the material referred to above;

b)

May otherwise apply for discharge or variation of this order in the event that it cannot be complied with; and

c)

Any application for discharge or variation must be made within 14 days of receipt of this order.”

The contentious parts of that order, as identified in the police application, are paragraph 1(i) and paragraph 1(ii), as highlighted.

That order was made in the absence of the police, but in respect of its paragraph 1(i) it gave effect to earlier orders, none of which contained provisions permitting redaction, and all of which had been served on the police and broadly complied with save as to the extent that material was redacted.

In respect of its paragraph 1(ii) it merely gave effect to an earlier order with which the police had already sought, albeit ineffectively, to comply.

At the hearing of 4 September 2024 before HHJ Walker there was consideration of the need to ensure that there could be a fair hearing, and in particular that the parents had appropriate material to ensure that they could fairly put their case. A particular concern was raised about the fact that the disclosure that the Police had provided was so heavily redacted that at times it was very difficult to understand. The Police had made no PII application and put in no statement, whether through the Protocol Procedure or directly to the Court, setting out the justification for the redactions. As but one example of the scope of the redactions, the name of the consultant paediatrician, Dr O, and of the hospital, XX Hospital, had been redacted. At no point was any justification advanced for this redaction, save for the most generalised points about protecting third party confidentiality.

The Police say that they only received the 4 September order on 25 September 2024. I will assume for the purposes of this judgment that this is correct. On 15 October the Police made an application to set aside the 4 September order, and that application was supported by a witness statement of DC H dated 14 October. The Police’s application stated:

“By Order dated 4th September 2024, HHJ Walker ordered, in the absence of any representative for Warwickshire Police, an exceptionally broad order for disclosure. This offends the principle in Re H-L (A child) [2013] EWCA Civ 655: "Too often, applications for the disclosure of medical or police records seek the disclosure of everything, without any adequate thought being given to identifying the particular class or classes of documents - here, indeed, a particular document - whose disclosure is really needed."

Family Procedure Rule 21.1 defines disclosure and inspection. Warwickshire Police will aver that disclosure has taken place and it is items for inspection which this order relates to.

Additionally there is no need to depart from the Disclosure Protocol.

Warwickshire Police are investigating allegations of cruelty to children/young persons in which [BN] and [KC] are suspects. The Court is referred to the statement of Detective Constable [H] dated 14 October 2024.

Warwickshire Police have reviewed the order and materials disclosed, determining that compliance with the order made on 4th September 2024 will greatly prejudice the ongoing investigation and may jeopardise the involvement of witnesses in this matter.

Compliance was made impossible as the order was not served until 30th September 2024.

Warwickshire Police seek an order discharging the Order on 4th September 2024. …”

The Police also made an application for the disclosure of certain material from the Family Court proceedings to the Police.

DC H’s statement did agree to provide some of the information sought with minimal redactions but continued to assert the need to redact the names of all “witnesses” including police officers, medics and third parties (if there were any). It also sought to redact certain information from the investigation, although it was wholly unclear whether this was for the purpose of protecting information that was sensitive for the investigation, or simply to protect witness identification generally. No justification was set out for these redactions save for a generalised reference to data protection and confidentiality. DC H said at para 14: “the main reason for redacted documents is that we have a duty to protect our witnesses, and we need to ensure that any disclosure will not impact the ongoing criminal investigation.”

Many of the redactions sought made very little sense because the parents were themselves interviewed by the Police so the names that were put to them in questions by the Police will necessarily be known to them.

Very helpfully Mr Vine KC, on behalf of the Mother, produced a detailed Schedule of material disclosed and redactions, but also pointed out that the exercise had shown that there was further police material, such as Body Worn Video footage which had not been disclosed nor inspected.

The principles upon which disclosure is made and where disclosure of relevant material can be resisted on the grounds of public interest are very clearly set out in the caselaw. The general powers of disclosure in the Family Procedure Rules (“FPR”) are summarised by Knowles J in Lancashire CC v A and others [2018] EWHC 1819 (Fam) at [7] to [12]. Since that judgment the 2013 Protocol - Disclosure of Information in cases of alleged child abuse and linked criminal and care directions hearings has been replaced by the 2024 Protocol – Disclosure of information between family and criminal agencies and jurisdictions. The 2024 Protocol was introduced in March 2024, so this case fell across both documents. However, in practice I do not understand there to have been any relevant material change in respect to the issues in this case.

It is clear from the 2013 Protocol and the 2024 Protocol that issues about relevance, redaction and PII should have been dealt with consensually, where possible, many months ago and should not be jeopardising a fact finding hearing in a case which has reached Week 40.

Importantly, at no stage had the Police sought to make a PII application, nor until the witness statement of DC H, had the Police sought to justify its redactions.

The principles to apply in PII applications are set out in R v Chief Constable of West Midlands police ex p Wiley [1995] 1 AC 274. The consideration of balancing interests and Convention rights in disclosure applications was set out by the Court of Appeal in Dunn v Durham County Council [2013] 1 WLR 2305.

Third party disclosure/inspection decisions are now conventionally made by reference to the decision in Dunn:

“23.

What does that approach require? First , obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly , if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly , any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly , the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly , in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.

…

45.

The reality now in the Family Division is that disputes about the ambit of disclosure, whether in relation to social work records or other types of document, are framed in terms of the need to identify, evaluate and weigh the various Convention rights that are in play in the particular case: typically Article 6 and Article 8 but also on occasions Articles 2, 3 and 10 . Examples can be found both in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730 , and in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 , to which Ms Connolly also took us. Recent examples of the same approach can be found in the decisions of the Court of Appeal in A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757 , where Articles 2 and 3 were engaged as well as Articles 6 and 8 , and Re J (A Child: Disclosure) [2012] EWCA Civ 1204 , another case where Article 3 was engaged.

46.

Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 was a care case where there was a dispute as to whether one of the fathers involved in the proceedings should have access to certain documents, including psychiatric reports, relating to the mother, her husband and the children. I held that he should not. However, I emphasised (para 89) that:

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant's access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

So far as I am aware, this approach has never been challenged and has often been followed. Indeed, the passage I have just quoted has twice been approved by the Court of Appeal: Re B, R and C (Children) [2002] EWCA Civ 1825 , para 29, and Re J (A Child: Disclosure) [2012] EWCA Civ 1204 , paras 49, 50.”

In my view, the Police have acted quite unreasonably in this case, in relying upon effectively unjustifiable redactions, until forced to come to court and explain themselves before the Midlands Family Presiding Judge, at which point they conceded on all points.

The scheme of the 2013 Protocol and the 2024 Protocol is to achieve a consensual process between the Police and the LA. It may be that there have been some delays by the LA in the early stages of this process. That may have resulted in a lack of clarity before September 2024 as to precisely what was required and why. However, that matters not because once the Police received HHJ Walker’s order from 4 September 2024 they continued to seek to uphold the redactions until the evening before the hearing.

If the Police are seeking to redact documents which are otherwise disclosable then they must clearly explain the justification for those redactions. There were two problems in this case. Firstly, there was no explanation whatsoever for the redactions when they were first made. Secondly, when DC H did set out her explanation it did not stand up to detailed (or indeed any) scrutiny, which is doubtless why the Police changed their position.

The redactions appear to have been made entirely by rote, for example removing all third party names, including that of doctors and hospitals, that were obviously disclosable. No thought was given to the justification for the specific redactions.

This failure by the police has led to both delay and significant waste of public funds. In the future the Police must consider whether each redaction is justified, taking into account the law as set out in Dunn. If they fail to do so and that leads to unnecessary hearings and expense, then the Police are at risk of a costs order. In this case no party applied for their costs, but I note that the legally aided parties have a duty to the Legal Aid fund and there would have been a strong case for costs to be awarded against the Police here.