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Family Law

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07 OCT 2009

CONTACT/FAMILY PROCEEDINGS: Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam)

(Family Division; McFarlane J; 7 October 2009)

The police informed the court dealing with the father's contact application in respect of a ward of court that there was credible intelligence to the effect that the father had taken out a contract to have the mother murdered while at court, although they had taken the decision not to investigate the claim further; the police requested that this information not be disclosed to the father, his family or any of the family's representatives. The police took the mother and child into police protection, subsequently stating that, for practical reasons, such protection would be withdrawn if interim contact with the father were established. Special advocates were eventually used to 'filter' evidence whose disclosure was resisted, possibly the first time such advocates had been used in family proceedings.

A judgment was given describing the procedure adopted, and flagging up lessons to be learned; the judge's central observation related to the unhelpful clash of cultures, or at the very least lack of understanding, that existed between the police and the family justice system. This had delayed and at times risked thwarting, the discharge of the family court's duty to act in a manner that met the overall welfare needs of its ward. While the police were not under an overt legal duty to assist the wardship court by investigating a case, having handed over important information to the wardship court, the police had some responsibility actively to assist the court thereafter. In cases like this, in which the fact-finding process was hampered by the lack of any party within the court process privy to all of the information, with some responsibility for investigating it, and able to act as prosecutor, it might be useful to draw the relevant local social services authority into the proceedings by way of a direction under Children Act 1989, s 37. If the authority chose to apply for a public law order, under s 31, the authority might then be a candidate to whom full disclosure could be made.

Any issue of PII material (sensitive material, allegedly outside the disclosure rules) that raised issues of complexity should trigger a transfer to the High Court.

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