LB Southwark v US and RT and Others  EWHC 3707 (Fam)
Mark Twomey Q.C. and Sarah Tyler of Coram Chambers were instructed in a case dealing with the tragic death of a child by and allegations of serious sexual abuse against her. They represented ND, a brother of the girl who died, where ND was placed in the pool of potential perpetrators by the local authority.
During a fact finding hearing, Mr Justice Francis was tasked with determining whether the child’s death was an inflicted act and whether she was sexually assaulted, and if so, whether either or both acts were caused by the mother, the father or her two brothers (“the pool of potential perpetrators”).
The case is currently subject to an appeal, due to be heard in early summer, but for the purposes of this blog post, the most pressing issues for practitioners are found at paragraphs 103 onwards. The smooth conduct of the fact finding hearing was severely impeded by the “catalogue of police failures in terms of disclosure” [§103]. This followed an already extensive list of failures in the police investigation set out by Mr Justice Francis at paragraph 43.
Mr Justice Francis noted that the disclosure of relevant material from the police was “woefully inadequate” (§44); only appeared following repeated orders being made; and resulted in hundreds of pages of disclosure being served on the parties during the court of the hearing. The consequences of this placed a significant burden on counsel, led to the potential for unfairness, and to “a serious risk that the proper investigation [of the child’s death] has been severely prejudiced” [§ 47].
Mr. Justice Francis was satisfied that new guidelines for the police, going beyond the requirements of the current protocol were necessary in cases involving the death of a child or children and/or an alleged serious assault against a child or children so as to prevent serious prejudice in the future, and to help parties when it appears that police are not meeting disclosure obligations.
The Judge asked trial counsel to prepare a draft, which was then added to, and Mr Justice Francis made clear that these remain proposals only and are expressly not formal guidance, albeit that the matter was raised with the President of the Family Division who indicated he intends to consult with the relevant authorities and may in due course publish further guidance.
For a list of the new 11 proposals on police disclosure, to be considered in cases involving a death of a child or a serious allegation of assault of a child, refer to paragraph 110 of the judgment: http://www.bailii.org/ew/cases/EWHC/Fam/2017/3707.html.
If you require representation or advice from counsel on any of the issues raised in the above blog post, please do contact chambers on 0207 092 3700.