Law Report: Father entitled to documents: Re K. Family Division (Mrs Justice Booth), 22 November 1993

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Mrs Justice Booth gave leave to the father to disclose documents adduced in Children Act proceedings for use in his defence to two charges of rape against his two daughters.

In proceedings under the Children Act in October 1993, Mrs Justice Booth dealt with the future of four children, two of whom had been sexually abused. The evidence that the father was a perpetrator of the abuse depended on two statements by the mother. The first was made to the police and the second filed as part of her evidence in the Children Act proceedings. Mrs Justice Booth found that the mother's statements were so inconsistent that they could not be relied on and did not establish that the father was the perpetrator and that other men had had access to the children. The future of the children was dealt with on the basis that it was an open question who had abused them.

The father, who was charged with rape in August 1993, sought leave under r4.23 of the Family Proceedings Rules 1991 to disclose documents in the Children Act proceedings for use in his defence. His application related to three statements by the mother and a transcript of her oral evidence, transcripts of video-recorded interviews with the children and other statements and reports filed in the proceedings.

Elizabeth Coleman (JB Wheatley & Co) for the father; David J Houston (Chancellor & Ridley, Dartford) for the mother; Karen Rea (Council Solicitor) for Kent County Council; Julie O' Malley (DJ Griffiths & Co, Bromley) for the maternal grandparents; Geoffrey N Smith, solicitor (JW Sanderson & Co, Erith) for the guardian ad litem.

MRS JUSTICE BOOTH said that proceedings under the Children Act, like wardship proceedings were not adversarial. Any decision as to disclosure arising in Children Act cases should be dealt with by applying the principles established in reported wardship cases.

Helpful guidance appeared in Re D (minors) (wardship: disclosure) (1992) 1 FCR 297, where it was said that the judge had to balance the importance of confidentiality in wardship proceedings and the frankness which it engendered in those who gave evidence against the public interest in seeking that the ends of justice were properly served. In conducting that balancing exercise the court must have regard to the interests of the children as a priority.

The mother would be a prosecution witness on the basis of her statement to the police. The father required leave to disclose the mother's statements and a transcript of her oral evidence for the purpose of challenging her evidence and her credibility. There could be no detriment to the children. In conducting the balancing exercise, the discretion should be exercised to permit disclosure.

The issue was whether the mother's statements came within s98 of the Children Act which provided protection to a witness who was required to give evidence in relation to a child when such evidence could incriminate him or his spouse. In this case the statements on which the father sought to rely did not incriminate him but on the contrary assisted him in his defence. Although the mother could potentially be at risk of being charged with wasting police time, that was a very remote possibility and on the face of the documents she was not incriminated. Leave for their disclosure should be given.

The transcripts of the video-recorded interviews with the children were of an inconclusive nature, although they went to show that they came into contact with other men. There was no question of the children themselves being called to give evidence. There could be no detriment to the children if leave for disclosure was granted and the balance came down in favour of the father's application.

The father's application for leave to enable his counsel in the criminal proceedings to see all the documents in the Children Act proceedings should be granted. It was important that his counsel should be able to satisfy himself that nothing material to the father's case had been overlooked.