By: Adam Smith

The “long arm” of the police – how “confidential “ are family proceedings?

7 August 2019 by Adam Smith

“Not very” seems to be the answer in the Court of Appeal decision in M (Children) [ 2019] EWCA Civ 1364

Sir Andrew McFarlane upheld Keehan J’s decision to disclose the parents’ initial statement and position statement to the police following the initial interim care hearing.

In family proceedings parents are advised that their evidence is confidential to those proceedings. They are encouraged to be open and frank and to understand that their children’s interests are the Court’s main concern.

But something seems to be eroding these principles, a trend set since the case of Re H (Children) [2009] EWCA.

The Court of appeal approved the test from Re C ( see below) and gave it the “fit for purpose” badge. The decision should be seen in the context of this being a police terrorism enquiry.

The Facts

The case involved two children aged 2 and 3, born in Syria to parents who were UK Citizens. The parents had travelled to Syria in 2014 against FCO advice, and met there.
The family came to the attention of the UK authorities in November 2018 when they were in a detention centre in Turkey, intending to travel to the UK. The Home Secretary made a Temporary Exclusion order against the father.
The family returned to the UK in January 2019. The parents were arrested under S. 41 of the Terrorism Act 2000, interviewed and subsequently granted bail. The children were placed in foster care initially under police protection.
On 11 January a hearing took place for an application for interim care orders. The threshold was pleaded on the basis of the harm the children were likely to have been exposed to whilst in Syria. The parents did not contest the application, with an interim care plan for placement with grandparents.

On 1 February the police investigating potential criminal activity by the parents made an application to the Family Court for disclosure of the parents’ witness and Position statements. The application was heard by Keehan J on the 8th April, who granted disclosure to the police.

The parents appealed.