Re M (children)
[2019] EWCA Civ 1364. The factors are as follows: "1.The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor;2.The welfare and interests of other children generally;3.The maintenance of confidentiality in children cases;4.The importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of Section 98 is to encourage people to tell the truth in cases concerning children and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. however, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given;5.The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice;6.The public interest in the prosecution of serious crime and punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.7.The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order;8.The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children;9.In the case to which Section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations;10.Any other material disclosure which has already taken place."20.Ms Tinsley set out the Re EC checklist factors in her skeleton argument, but did not say in either her written or oral submissions how they applied to this application. Those checklist factors are said to apply in public law proceedings relating to children. I do not know whether it is safe to assume that the checklist applies equally to private law proceedings, in which section 98 does not operate in the same way. 21.Assuming for now, that it is appropriate to apply the Re EC checklist to this case, Ms Tinsley did not make any written or oral submissions considering the individual factors as they applied to this case. She could not do so, because there is no written evidence from the police in support of the application. Such evidence would have informed an analysis or evaluation of the checklist factors. 22.Ms Tinsley says that the police have not got a copy of any index from the Family Court file, so do not know what documents are there or not. She asks for the Court to review what is there, and order disclosure of documents that are relevant to the criminal investigations. 23.Although the application is brought with two separate investigations in mind, the focus does seem to be very much on the potential charges against Ms F. Ms Tinsley says, ‘the disclosure application is made at the request of the CPS to assist in understanding the mitigation provided by Mrs F and the level of risk Mr G may have presented to her and the children. The disclosure from the family proceedings is therefore sought to corroborate information given in defence of the allegations being investigated.’24.The use of the word ‘mitigation’ is unfortunate, implying as it does that a conviction has already been obtained. Because I have not received a witness statement in support of the application, I do not know what the ‘information given in defence of the allegations being investigated’ is, and therefore I do not know whether or not the information contained within the family court files would tend to corroborate it or not.25. Ms Tinsley submits that the court must undertake a balancing act, ‘between the need for frankness and confidentiality in family proceedings versus the administration of justice and co-operation between the different agencies involved in these matters.’ She submits that the balance falls in favour of disclosing ‘relevant’ evidence, ‘to allow the justice process to consider all relevant material when making decisions on how to proceed following an investigation.’26.Again, because I have no evidence in support of the application telling me what the investigations are really about and what information has already been obtained, I cannot realistically conduct the exercise Ms Tinsley invites me to carry out. 27.From Miss Perry KC on behalf of the respondent mother, I understand that the police attended various multi-agency risk assessment meetings (MARAC) and should as a result have the minutes of those meetings in their possession, thus giving some insight into the level of concern from the local authority about the risk it regarded Mr G posed to Ms F. In addition, the police have the following documents: Lifetime restraining order,; Prohibited steps order; Final order;Non-molestation order; CCTV footage that was reviewed by local authority, leading to the conclusion that there was sustained domestic abuse perpetrated by the father against the mother and the children; Audio recordings obtained by the mother and provided to the police leading to the investigation of the offences of threats to kill and also of stalking and misuse of computers; Section 7 report;Police interview of mother under caution, in which she admits using spyware to obtain recordings from the father’s phone; The witness statement from father taken by the police (he is the complainant re the stalking and computer misuse allegation)28.All these documents are on the Court file, together with further documents from social services’ child and family assessments and in respect of its involvement with the family more generally. It can be assumed that the police would be given access to the social services documents by the local authority. At the conclusion of proceedings, I gave permission for the section 7 report to be shared with the police. 29.The additional documents on the Court file are Court orders, and a number of witness statements filed by each of the Respondents to the application at different times throughout the proceedings. There never was a contested hearing, so the contents of these statements have not been tested in Court by cross-examination. 30.Mr G attended the application hearing. He sought to deny and to minimise his actions in strangling his wife, notwithstanding this was clearly visible on the CCTV footage in June 2021, and for which he was convicted in the criminal courts. He told me he did not strangle her, but ‘held her’, and this was, ‘a moment of madness for which he has remorse’. As at a previous hearing before me, he sought to deflect blame away from himself by blaming the mother for her behaviour, which he implies provoked him. He told me the family court had taken away his children from him, based on the information he says was manipulated, taken out of context, and provided to social services from the ‘illegal’ recordings made by the mother.31.He did not expressly deny the allegations of having made threats against the mother (this hearing was not about investigating the truth or otherwise of those allegations). He emphasised the impact upon him of having listening software installed on his phone, recording every conversation he had over a ten-month period. He said the software recorded conversations that took place in private, with people he trusted, and where he was ‘venting’ because he had not seen his children for a year. He said he has been told by the police that they investigated him and ‘found nothing’, and ‘did not regard him as a risk or a threat’. 32.He fully supports the police in its application for further disclosure of information in respect of its investigation into phone hacking. As he did not consider he himself was in danger of being charged in respect of the threats to kill, he did not put forward a position about the disclosure of statements that he has provided to the Family Court. Ms F and her solicitors have also been given to understand that the investigation against Mr G was not being pursued further by the police.