Speeding up disclosure of police records

Too often in private Children Act proceedings there’s a history of police involvement with the family, with allegations of abuse having been made.

It is also an unfortunate reality that getting hold of police records (whether you’re acting for the alleged perpetrator, the victim or someone else) often take weeks if not months – and invariably much longer than the 30-day time limit.

With the introduction of Practice Direction 12J (which sets out the protocol for Children Act cases where allegations of abuse are made), and the resulting increase in cases listed for a fact-finding hearing, it is increasingly important that police records are obtained in a timely fashion.

However, standard subject access requests made to the police often take many weeks to process, so what can be done to speed up the disclosure of police records in family proceedings?

Good practice

In 2013, the senior presiding judge for England and Wales, the president of the Family Division and the director of public prosecutions (DPP) signed the 2013 Protocol and Good Practice Model for disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings. The aims and objectives of the protocol are:

• to provide early notification to the local authority and the family court where a criminal investigation has commenced; and of the details and timescale of any criminal prosecution;
• to facilitate timely and consistent disclosure of information and documents from the police and the Crown Prosecution Service (CPS) into the family justice system;
• to provide notification to the police and the CPS of an application to the family court for an order for disclosure of prosecution material;
• subject to the Family Procedure Rules 2010 (FPR) and relevant practice directions, the Criminal Procedure Rules 2013 and the common law duty of confidentiality, to facilitate timely and consistent disclosure of information and documents from the family justice system to the police and or CPS;
• to provide a timely expeditious process for the local authority to respond to a request from the police for material held by the local authority which would assist a criminal investigation;
• to provide for timely consultation between the CPS and the local authority where local authority material satisfies the test in the Criminal Procedure and Investigations Act 1996 for disclosure to the defence;
• to provide a streamlined and standard process for applications by the police and or CPS for the family court’s permission for disclosure of material relating to family court proceedings; and
• to specify a procedure for linked directions hearings in concurrent criminal and care proceedings.

Application

The protocol applies to cases involving criminal investigations into alleged child abuse (including sexual and non-sexual abuse), and or family court proceedings concerning a child aged 17 or under. It covers three main scenarios, as follows:

• Part A – Disclosure of information into the family justice system
• Part B – Disclosure from the local authority/ family justice system into the criminal justice system
• Part C – Linked criminal and care direction hearings

Here, we focus on part A (disclosure into the family justice system) by the police; and how the 2013 protocol may be utilised in private Children Act proceedings.

Part A sets out in detail the steps each agency involved should take to secure the disclosure of relevant information into the family justice system in a timely fashion. In relation to requesting information and the provision of information, it provides that:

• As soon as reasonably practicable, and in any event on issue of proceedings, the local authority should provide notice to the police of the contemplation or existence of family proceedings using the standard request form.
• Where criminal proceedings have been commenced (or are contemplated), the police will immediately forward a copy of the standard request form to the CPS.
• Where the request does not relate to a child abuse investigation, the police will forward the form to the unit holding the information or documents sought and will take responsibility for liaison with those units to ensure the provision of information.
• Within five working days of the commencement of the relevant investigation, the police will provide details of the criminal investigation to the local authority.
• The police will contact the local authority at the point of charge, providing details of offences, custody status of defendants, bail conditions and court timescales.
• In the event a suspect is not charged, the police in consultation with the CPS will provide the local authority with reasons why there will be no prosecution.
• Within five working days of each case management hearing in the crown court, the CPS will provide the local authority with details of the future timetable of the criminal proceedings; and details of any directions relevant to the local authority or to concurrent family proceedings.
• Within two working days of receipt, the local authority will forward above details to the family court.

The protocol is clear that where possible, there should be voluntary disclosure of information by the police into the family justice system, redacted if necessary, to avoid prejudicing the police investigation.

However, in certain circumstances it may be necessary to obtain a court order for disclosure against the police/CPS (perhaps where time is of the essence or where the police seek to attach conditions to the release of information). Where an order is sought, the protocol provides that:

• the local authority must notify the police and CPS of an application within two working days of the application for an order being made; and notify them of the date and time when the application will be heard, so they may be heard on the matter if necessary;
• any order by the family court for disclosure should be in the form annexed to the protocol; and
• the local authority must ensure any order against the police and or the CPS is served as soon as reasonably practicable, in any event within two working days of the date of the order.

Private cases where the local authority is not involved

There will be many private Children Act cases in which the local authority is not (or not yet) involved, notwithstanding police involvement and allegations of abuse. In those cases, in my experience the best results are still achieved by adhering to the protocol.

Put the police on notice that you will be seeking disclosure; make your request for disclosure using the standard request form; and refer to the protocol in your correspondence with the police.

If your request is not fulfilled within a reasonable timescale, put the police on notice that you will be seeking an order for disclosure of the relevant information into family proceedings; and notify them of when and where the application will be heard.

Always make the application well in advance of the first hearing and dispute resolution appointment (FHDRA) so that, ideally, the information is produced before it; or if the information is not forthcoming before it, your application for an order for disclosure can at least be heard at the FHDRA (avoiding the cost of a separate hearing).

In summary, the 2013 protocol facilitates and improves communication between the police and CPS, the local authority and the family court; and timely and consistent disclosure of information and documents between the police and CPS and the family court.

It also provides several useful precedent documents to speed up and assist in the process of obtaining relevant information, including a standard request form and a standard form of order. The protocol is a useful tool in cases where you are likely to need to obtain police records.

Mariko Wilson is a senior Associate at Family Law in Partnership flip.co.uk

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