This is an interesting judgment. The facts of it are very sad (vulnerable, isolated teenaged brother and sister who somehow manage to end up as mother and father of a baby at the age of 14) – but I’m more interested in the bells it rings regarding the interplay between family and criminal process : Y (disclosure to MPS) [2021] EWFC B33.

As is usual for HHJ Atkinson the judgment is well crafted, thorough and poignant. It is not obvious at the outset just how cross she is, but by the end you certainly know it, even though she remains fair and polite throughout.

Because what happened in this case is something I’ve seen happen in a number of my own, and to me it feels like HHJ Atkinson is highlighting something that may be happening more widely :

• Firstly, the police and / or CPS seem to be waiting for a decision in the care proceedings or disclosure from them before making a charging decision – sometimes the police just won’t send the case for a charging decision until any application for disclosure has been dealt with, based on their expectation that the CPS will decline to make a decision.
• Gone are the days when a criminal trial could be expected to take place before we can set up a fact finding hearing meaning that in some cases the need for a fact find would be obviated entirely, and in others the criminal evidence could inform the care process (long gone to be honest).
• Secondly, the police are increasingly likely to fail to meet disclosure requests of their own material – sometimes because they are too busy – and sometimes because they have an open investigation. If I was a cynic I’d say there is a distinct whiff of the Police or CPS hoping something will turn up in the care process (perhaps in oral evidence) that will short circuit things and make their job easier – police are under huge pressure, and whilst we are running around trying to analyse phone records and ABE interviews and gathering expert evidence, it often feels like not a lot is happening on the criminal side of things. That may be unfair to the police – it is probably only half the picture – but that is how it often feels in the face of inexplicable delay and radio silence.

Anyway, the upshot of all this is that cases are delayed, the parents in the care proceedings are left in limbo – worried about potential future criminal charges hanging over them, probably often too scared to be frank about what has really happened. And often not knowing whether there is a risk of prosecution, conviction and imprisonment or deportation may mean the family court will struggle to resolve care planning too – how can you place a child with someone who might be detained at Her Majesty’s Pleasure within the year? It can be very chicken and egg. And if the police are tardy with their own disclosure the fact finding process in the family court can stall too.

Charging decisions are two pronged of course – its not just about the evidence and whether they could secure a conviction. It’s also about whether they should try in the first place (the public interest test). Sometimes, as in this case, the public interest arguments against prosecution are really clear and obvious, and ongoing proceedings are no reason to delay a charging decision – but in others the outcome of the case may be materially relevant to a decision whether or not to prosecute: for example in a case where a child is rehabilitated to the care of a reformed parent, jeopardising that by prosecution might not be in the public interest. In those cases it can really be difficult to reconcile the tensions.

But in this particular case HHJ Atkinson is describing a police service (the Met), which was causing delay to both processes, was wasting its own time and money – and that of the family court and the professionals working within it – by making sweeping disclosure applications for family court papers that served no purpose and would not help them with the public interest decision (the evidence of an offence was pretty clear cut in that case so it was all about the public interest in prosecuting the parents who the judge considered were both vulnerable victims rather than perpetrators).

The judge made her view pretty plain way back in October 2020 and yet the Police were still persisting well into 2021. HHJ Atkinson’s post script to her judgment tells you all you need to know about how the amount of energy and resource the family court had to expend in order to get the MPS to see sense :

I handed down a copy of this Judgment on 27^th October 2020.  On the same day the MPS made a further application for disclosure of documents; this time specifying the documents so as to narrow the focus but by very little.  The application included a request for documents that I had made clear, in my Judgment, contained nothing of additional value for the police or CPS. 

The MPS attended the Issues Resolution Hearing on 4^th November but there was insufficient time for a further argument on disclosure and so I had to earmark more court time for a full contest a little over a week later. By then there had been a further petition on behalf of the child-parents from the NSPCC expressing concern that in the view of that organisation any prosecution was very obviously not in the public interest and the failure to make a swift decision, one way or another, on the ample information available was contrary to good practice in matters involving sibling sexual abuse. Keen to ensure that this Judgment had been read, and to understand what more the CPS needed to make a swift decision, I directed the attendance of the officer in the case and the CPS reviewing lawyer.

Three days before the listed hearing the MPS withdrew its application indicating that the CPS lawyer had marked the case as ‘finalised’ and without the need to view anything else. It was confirmed that by ‘finalised’ it was intended that there would be no further action taken against either of these child-parents. 

This chronology speaks for itself.  In the space of a matter of days a decision was made by the CPS on the merits of pursuing a prosecution in this case without the need for any further documentation from the family proceedings.  It must follow that this is a decision that could have been made many months before.  It is unfortunate and indeed a terrible waste of court time and effort that the impetus to reach this decision seemingly required my intervention.  That is to say nothing of the impact of such additional delay on the three children at the centre of these proceedings.

The Judgment also records this (pa 57 onwards) :

This is not the first time that I have had to devote precious court room time and resources to this sort of application, but I am pleased to observe that it is a rare occurrence.  In most cases, I deal with disclosure to the police on paper, without the need for a hearing and in the face of no or negligible objection.  However, there has been a noticable [sic] increase of late in applications for blanket disclosure by the MPS made at the behest of the CPS who refuse to make a charging decision until they have in their possession every piece of paper relating to the individuals under consideration, or so it seems.

I completely understand that this approach has grown out of a series of cases in which the late discovery of evidence which should have been considered at the outset has very publicly undermined confidence in the process.  However, the need to investigate thoroughly does not mean that investigation should proceed blindly.  A tick box approach in which there is no charging decision is even considered until all social services records have either been secured or refused by court order is unhelpful and has been a waste of my very limited and precious court time.  It is an exercise which is focused on ensuring that no criticism will be made further down the line and has replaced the exercise of professional judgment.

Delay

Finally, in the interests of the child who is the innocent product of this ‘incident’, can I politely remind the MPS and the CPS of the potentially devastating impact any further delay in the decision making is likely to have on Y?  Although I have yet to see evidence from the family finders, it seems obvious to me that the fact of her parentage, together with possible genetic uncertainties, will narrow the pool of people prepared to care for her.  A continuing criminal investigation and, worse, the spectre of a criminal trial looming may only serve to narrow the pool even further; possibly even empty it.  It may not be possible to conclude the processes in relation to her until after the conclusion of a trial, if there is to be one.  The older she is, the harder she will be to place and the harder it will be for her to settle in a new placement. In short there is the potential for further damage to be done here by reason of the unforgiveable delay in the process.  Not just to A and B through their inability to access their much needed therapy, but also to Y.  I would respectfully invite the decision makers to bear that in mind.

I don’t know if there is some sort of policy or organically evolved practice within the CPS of requiring the chasing down of family court disclosure for the sake of completeness as some sort of default – but I really hope not. Perhaps there isn’t and the problem is with the Officers in the Case misinterpreting what the CPS actually want from them (though I have to say that based on my experience and reading of many many police logs I’m pretty sure the police are sometimes TOLD by the CPS ‘you must have x,y,z before we’ll consider the case’). HHJ Atkinson may use the phrase ‘rare’ but she doesn’t appear to be describing a one off either – this seems to be the particular case that has tipped her into publication, having tried more diplomatic means before without effect. Is there a pattern emerging? What HHJ Atkinson is describing is definitely not unfamiliar to me, a barrister practising in an entirely different part of the country (with various different police forces coming across my radar), but nor is it a feature of every case – but I wonder if this phenomenon is also familiar to others? It doesn’t need to be happening often for it to be to be both causing harm to individual families and adverse impact on the family court system as a whole.