Interesting example of how not to successfully apply for disclosure of information from the family court here, in Thames Valley Police v Ms F & Anor [2023] EWFC 28. A police force sought disclosure of material from family proceedings in the course of investigating threats to kill by one party which had been covertly recorded by some sort of phone hacking app by the other (the mother). The father had a criminal conviction for domestic violence against the mother, and the family court had concluded he was high risk. The police already knew most of this when they applied.  

The judgment is a CJ level judgment from HHJ Vincent, so it isn’t strictly authority for anything. But it is typically lucid and is very helpful as a case study. What can we take from this case?

• Applications for disclosure of information should be backed by evidence and a clear explanation of WHAT is needed and WHY (which may well mean the police need to say what they have and to identify documents or categories of documents that would advance the purpose of the application (purposes like child protection or investigation of crime),
• A judge needs more than signposting to the case of Re EC which sets out some helpful considerations – the court will need to hear how each factor applies in this case and how heavily it is said to weigh
• The applicant really should apply its mind to any potential welfare implications,
• Careful attention should be paid to which part of the rules the application is made under:
  • a rule which permits a party to disclose is not the same as an entitlement to receive it (in this instance a party MAY disclose a judgment to poilce, but that doesn’t mean the police automatically get it)
  • you can’t rely on the rule relating to ‘furtherance of child protection’ if the purpose is investigation of crime (unless its a child protection type offence being investigated, I suppose).
• if you don’t make sensible efforts to tell the parties what you want and why BEFORE the hearing, and your application fails at the hearing because you still haven’t properly articulated the justification for your application the court may well consider the costs of the application against the police.

The case also serves as a useful reminder of the issue of potential criminal liability in relation to covert recording (or at least covert recording that takes the form of ‘phone hacking’). Oh, how we really need the long awaited guidance from the Family Justice Council on covert recording….