A ‘protocol’ for communication of children proceedings information between police and local authorities

As I review Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol (published by Crown Prosecution Service (CPS) and in force since 1 March 2024: ) (“the Protocol”)) it is impossible not to reflect on what a muddle procedural law, its terminology and practice, has got into over the term “disclosure”. It means different things in the context of different types of proceedings, most notably in civil proceedings generally, in specifically family proceedings and in criminal proceedings.

As will be seen in succeeding posts, the concept of disclosure in the Protocol is dealt with statutorily as, for example:

I have tried to adopt the neutral non-statutory term “release of material” to deal with the subject. Consideration of “disclosure” in its different guises in the context, predominantly, of family proceedings in this short series is:

  1. How is “disclosure” defined in procedural rules and in the variety of statute law and statutory codes to which the Protocol is subject;
  2. What are the statutory and common law provisions which regulate the communication of material into family proceedings (eg to the police; but also to other parts of the Home Office and the Inland Revenue: similar statutory principles – largely overlooked by the Protocol – apply to each of these); and
  3. What provisions (especially in AJA 1960 s 12(1) and FPR 2010 Part 12 Ch 7) govern the release of material from family proceedings (mostly children proceedings)?

The Protocol deals only with children proceedings and in relation to police and local authority material (for practical purposes). The posts in this short series will consider the various contexts – sometimes conflicting – in which “disclosure” arises in various procedural circumstances.

One caveat is entered immediately. I am a family practitioner (ie mostly proceedings under FPR 2010) with some experience of civil proceedings (eg family property under Trusts of Land and Appointment of Trustees Act (TOLATA) 1996, judicial review and in the Court of Appeal). Until I dealt with the Protocol in the past few weeks, with its extensive reliance on disclosure in criminal proceedings, my involvement with criminal cases ended forty years ago.

“Disclosure”: a definition in civil and family proceedings

My starting point will be the basic civil proceedings definition of “disclosure” cited here in FPR 2010 r 21.1, for brevity, but to the same effect in civil as in family proceedings (see Civil Procedure Rules (CPR 1998) rr 31.1-31.2):

(1) A party discloses a document by stating that the document exists or has existed.

(2) Inspection of a document occurs when a party is permitted to inspect a document disclosed by another person.

Lord Woolf’s Access to Justice, Interim Report of June 1995 discusses “discovery” (the former term for the present subject) at Chapter 21. In his Final Report of July 1996, without discussion, Lord Woolf talks briefly (at Ch 12 para 37) of “the need to curtail the process for discovery (which I now recommend should be called ‘disclosure’)”. And that was it. Henceforward the term was to be, as it remains, “disclosure”. As a result, a leading text book on the subject was titled, in full: Disclosure (being the fourth edition of Discovery) by Paul Matthews and Hodge Malek KC, Sweet & Maxwell. [It is now, in its sixth edition, simply titled Disclosure.]

Family lawyers are familiar with the term “disclosure” from at least ten years earlier than Lord Woolf’s report. In Livesey (formerly Jenkins) v Jenkins [1985] AC 424 at 436-438, [1985] FLR 813 at 822 Mr and Mrs Jenkins had agreed that she would receive the freehold of their former matrimonial home in full settlement of her outstanding financial claims, which in normal circumstances would have included letting Mr Jenkins off payment of periodical payments to her for the rest of her life or till earlier marriage (which, everyone assumed, would be sometime into the distant future). When these terms were agreed and reduced to a final order Mrs Jenkins failed to tell anyone – notably the court or Mr Jenkins and his lawyers – that she planned to marry Mr Livesey. When she did so remarry, Mr Jenkins cried foul. If I had known that, I should never have given her the house.

‘Full and frank disclosure of information’

The House of Lords agreed with Mr Jenkins and set aside the consent order. Lord Brandon said:

“In proceedings in which parties invoke the exercise of the court’s powers under [Matrimonial Causes Act 1973 (MCA 1973) ss 23 and 24 [powers of the court to award financial relief], they must provide the court with information about all the circumstances of the case, including, inter alia, the particular matters specified [ie categorised in MCA 1973 s 25(2), as it now is]. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up to date, the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by [s 25(2)]”.

Lord Brandon continued using words echoed by other lords:

“I stated earlier that, unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.” (Emphasis added.)

Lord Scarman emphasised the importance of “full and frank disclosure” to the then developing concept of the “clean break” in the following terms [1985] AC at 430:

“The principle of the ‘clean break’ as formulated in Minton v Minton [1979] AC 593, 601 (Viscount Dilhorne) and at 608 (myself) retains its place of importance in the law. The justice of the clean break depends upon the full and frank disclosure of all material matters by the parties. But orders, whether made by consent or in proceedings which are contested, are not to be set aside on the ground of non-disclosure if the disclosure would not have made any substantial difference to the order which the court would have made.”(Emphasis added.)

A funny aside to Livesey is that in October 1981 before Balcombe J in the Family Division sitting in Bristol (contra James Meston, now HHJ Lord Meston KC) I did a similar case in which a wife said my client had not provided financial information which, she said, he should have provided. I cannot remember what information he was said not to have provided. Balcombe J refused to set aside a consent order. He said – in those pre-Livesey days – that if she had not asked for the information, then that was tough.

Disclosure of information

“Discovery” – the term used pre-Civil Procedure Rules 1998 and Lord Woolf’s re-writing of the term – was about “documents”. And so too, it could be argued, is the redraft of the rules. Lest there be any doubt on the point let the parallel CPR 1998 r 31.2 be cited in full. It says simply: “Meaning of disclosure – A party discloses a document by stating that the document exists or has existed.” CPR 1998 r 31.4 and 21.1(3)(a) defines “document [as] anything in which information of any description is recorded”.

As can be seen from the above citations from Livesey what their Lordships were getting at was disclosure of information, or “all material matters [or facts]” or “information about all the circumstances of the case”. In Livesey it is unlikely there was much, if anything, in the way of discoverable documents to establish that Mrs J planned to marry Mr L. It was the fact of remarriage, that is information on the subject, which was what the House of Lords was concerned with.

And that brings this post back to the 2024 Protocol. It sets out its intent as being to:

  • provide a consistent approach to “information sharing” so as to safeguard and promote the welfare of children and “vulnerable adults”
  • promote timely, focused and proportionate requests for material and responses
  • recognise the importance to all parties of having relevant information and material in order to discharge their functions
  • reduce the need for hearings, witness summonses, urgent applications and public interest immunity (PII) hearings to those which are strictly necessary.

Sources – at common law and in statute – for the Protocol

As can be seen three of these objects stresses the protocol’s concern with information and material. Documents are not mentioned at this stage. The Protocol is not in any way a statutory document: neither is it a statutorily produced practice direction, nor statutory guidance (as is the 2020 Code referred to later), still less is it a statutory instrument (see thoughts on the “jungle of ‘quasi-legislation’” in my post ‘Guidance’ as law and the relevance of non-statutory “legislation”). Some of the assertions of law and procedure of the Protocol are questionable (see comments on its para 1.9 in the next post); and some assertions are demonstrably wrong.

Sources – statutory and common law – on which it is, or should be, heavily dependent are:

None of these sources are mentioned in the Protocol, save for sparse footnote references to the 2020 Code and the AG Guidelines (for the separate subject of post-hearing release of documents see Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2020] AC 629, [2019] 3 WLR 429 (29 July 2019) and my earlier post, Release of court documents to people who are not parties to the proceedings).

Code of Practice under Criminal Procedure and Investigation Act 1996

The Protocol has no formal statutory or common law basis; though it is published by the CPS, developed, it says, by “the judiciary, local authorities, police representatives”. The origins of the Protocol are best found in CPIA 1996 Part 2 (criminal investigations) and its code of practice.

Section 23(1) of the 1996 Act requires the Home Secretary (“the Secretary of State” under the 1996 Act) to “prepare a code of practice”. In compliance with s 23(1) the 2020 Code is designed for investigating police officers and prosecutors (which the code rightly distinguishes one from the other). (What follows is written by a lawyer with no up-to-date experience of criminal law or procedure, beyond what is in the 2020 Code.) Under s 23(1) the Code sets out how police are to record, retain and reveal to the prosecutor material obtained in a criminal investigation and which may be relevant to the investigation, and related matters. It merits only a footnote in the 2024 Protocol (ie n 4 under “Key terms”: “Code of Practice issued pursuant to CPIA 1996”); though it is especially important in helping readers of the Protocol to understand some of its terminology (see its Section 2 and as will be explained later).

Section 23(1) defines the Code which the Home Secretary is required to prepare. This must include “information which is obtained in the course of a criminal investigation and may be relevant to the investigation is recorded” (s 23(1)(b)); any “record of such information” must be retained (s 23(1)(c)). Especially relevant in this context s 23(1) asserts:

“(e) that information falling within paragraph (b) and material [retained from the investigation] is revealed to a person who is involved in the prosecution of criminal proceedings arising out of or relating to the investigation and who is identified in accordance with prescribed provisions;

(f) that where such a person inspects information or other material in pursuance of a requirement that it be revealed to him, and he requests that it be disclosed to the accused, the accused is allowed to inspect it or is given a copy of it.…”

As can be seen, any reference to “disclosure” in the 1996 Act is sparse. Section 23(1) is concerned only with material intended available to the prosecution being “revealed [to] a person involved in the prosecution” and it being “disclosed to the accused” (s 23(1)(e) and (f)).

The terms used in the Code, “material” and “sensitive material” (see Part 2 of the Code) are defined; and “retention” and “listing” of material is explained in Parts 4 and 6. “Redaction of sensitive material” is dealt with at Section 6(c). A disclosure officer, says the Code, picks up the baton at this stage, and is responsible for passing on material to the prosecutor (Part 7) who is then responsible for dealing with “disclosure of material” to the accused (Part 10).

Attorney General’s Guidelines on Disclosure

The AG Guidelines are referred to by another footnote in the 2024 Protocol (see para 2.4) as issued “for investigators, prosecutors and defence practitioners on the application of the disclosure regime contained in” CPIA 1996 and the 2020 Code. The parts of the AG Guidelines to which the Protocol footnote specifically refers relate to:

  • an individual’s European Convention Art 8 rights (para 13) when obtaining their personal or private material (eg para 13(d));
  • the obtaining of non-party’s evidence and its relevance (paras 28-32); and
  • any public interest immunity or confidentiality aspect to that evidence (paras 34 and 42-45). (The subject of ‘third-party’ material (TPM) is under review by the Home Office: see eg their consultation response .)
  • How the police and CPS should deal with “sensitive material” is dealt with at paras 66-70 and by reference to the 2024 Code (para 6.14, and as explained later).

So how does all this relate to the Protocol? So far as the Protocol and other sources differ, how does the 1996 Act statutory code differ from the position under children law and the non-statutory Protocol? And how do differing concepts of “disclosure” affect the different areas of family law involved.

Release of information from and into family proceedings

Two separate categories of family proceedings procedure are envisaged by the 2024 Protocol; but to what extent are assertions in the Protocol permitted by statute and other law to which the Protocol is subject? In particular, to what extent do rules permit release to non-parties (including the police) of material in proceedings held in private? These two categories – to be dealt with more fully in succeeding posts – are:

  1. Material can the court order non-parties to make available to the family proceedings in question; and
  2. What applications can the family courts allow for release to non-parties (such as the police or the Home Office in asylum cases) of material from family proceedings?

As will be explained the Protocol takes no, or no express account, of a number of important statutory provisions. In consequence it makes mistakes in what is says is law or applicable procedure in at least two cases (paras 1.9 and 2.3: to be explained in a further post). The main legislative provisions (including delegated legislation) in play in the 2024 Protocol are, or should be:

  • AJA 1960 s 12(1)
  • Senior Courts Act 1981 ss 33 and 34
  • FPR 2010 rr 18.7, 21.2, 12.73-12-75 and PD12G
  • CPR 1998 r 46.2(1) (costs against non-parties)

Succeeding posts in this short series will review these statutory provisions; their impact on the full spectrum of family proceedings (ie not just children proceedings); and how, in particular, the release of information (or “disclosure”) from family proceedings crosses into operation of the law on “publication” of children proceedings under AJA 1960 s 12(1).

There is a variety of case law on “communication” of information to the Inland Revenue (relevant to SCA 1981 s 34 and see R v K (A) [2009] EWCA Crim 1640, [2010] QB 343, [2010] 1 FLR 807); and in children proceedings to different parts of the Home Office (ie not just to the police): for prisons see eg A Local Authority v J and ors (Practice Note) [2022] EWHC 127 (Fam), [2022] 1 WLR 2835 (also Re L (Third Party Disclosure Order: Her Majesty’s Prison and Probation Service), [2022] 2 FLR 575 (24 January 2022), Cobb J; and for asylum cases see A & ors (Case Proceedings: 1996 Hague Convention: Habitual Residence)https://www.iclr.co.uk/ic/2024003332 [2024] EWFC 110 (23 May 2024), Knowles J.

All will be explained in succeeding posts.

Featured image: old love letters, via Shutterstock.