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Delaying disclosure for effective investigation

The Family Division of the High Court in G v G (Chief Constable of Dorset Police intervening) [2018] EWHC 1100 (Fam) ordered that the service and disclosure of a CAFCASS report be delayed for a week in order to allow an effective police investigation into allegations that the father had sexually abused one of the children. The judgment of 4 May 2018 was delivered in private and Holman J gave leave for an anonymised version to be published one week later, stating that the decision had been made upon the Court “being asked to take a very unusual course” in “a very unusual application”.

The parents of two children aged seven and four lived in New Zealand. The mother travelled to and remained in England with the children. The father, a citizen of New Zealand, commenced proceedings to return the children to New Zealand pursuant to the Hague Convention.

On 13 March 2018 the matter came before Holman J for directions which included:

a. The father would collect the children from the mother on 10 April 2018 and return them to her on 15 April 2018;

b. An officer of the CAFCASS High Court team would by 27 April 2018 file and serve a report concerning the wishes and feelings of the children;

c. A final hearing of the father’s application would be held on 23 May 2018. The order required that the father travel to England for the hearing and it was understood that the father would be travelling to England on 19 May 2018.

On 16 April 2018 the mother contacted Dorset police and stated that the elder child had been on holiday with her father and upon her return disclosed that she had been sexually assaulted by him. The child subsequently gave a video interview to police detailing a compelling account of the incident and reported incidents having also taken place in New Zealand.

Police inquiries in England and New Zealand were commenced and were ongoing at the time of judgment. The CAFCASS officer was informed of the police investigation and made reference to it in the report which was due to be filed and served by 27 April 2018. The intention of the English and New Zealand police forces was that the father should be interviewed in New Zealand but New Zealand police were not yet ready to do so.

The father knew nothing about the allegations and was unaware that he was the subject of any police investigation. The concern of the police was that if the father were to see the CAFCASS report before being interviewed, he would be ‘tipped off’ and might react in a way which would prejudice the criminal investigation(s). By an interim holding order made by Williams J in the week of 23 April 2018, CAFCASS did not file and serve the report by 27 April 2018.

Thereafter, before Holman J, Dorset police applied for an order delaying the filing and serving the CAFCASS report and any disclosure of its contents to either party or their solicitors. The police applied for a delay in service of the report to 11 May 2018, that being until such time as the father had been interviewed by New Zealand police. Holman J held that he was willing to take the unusual course and ordered that CAFCASS must not file, serve or disclose the contents of their report before 11 May 2018.


Whilst the case concerned an unusual application, the matter is also plainly fact-specific. However, as to general matters of principle it is worthy of note that Holman J considered that he was being asked only to put a temporary brake or delay upon disclosure to both parties of a report that would be disclosed in due course. The Court emphasised that such delay was quite distinct from the issue of sanctioning ultimate non-disclosure and that the authorities on non-disclosure were not closely on point.

Insofar as practical implications of the delay were concerned, service of the report was already one week out of time and the Court was being asked to delay service only by one further week. The Court observed that in doing so the parties would still have the report more than ten days before the substantive hearing and about one week before the father’s anticipated date of travel to England. On that basis, Holman J observed: “[i]t does not seem to be that by imposing that relatively short period of further delay, I am significantly impairing any rights of the parents to a fair trial or, indeed, significantly impacting upon their preparation of this case”.

Accordingly, applicants in subsequent cases should pay particular attention to the practical implications of any delay sought and the ultimate impact upon the Court proceedings as well as the right to a fair trial of all parties.

Moreover, the Court observed that it was required to balance against any such impairment or impact the important need in the interest of justice and the interests of the child that effective police investigation(s) could take place. Therefore in such applications any potential prejudice to an investigation or a victim of crime, should the court refuse to make an order, must be elucidated.

Notwithstanding the stated importance of assessing the impact of the order for delay upon an impending hearing, Holman J added that it seemed inevitable that there would not be an effective final hearing of the father’s application under the Hague Convention by 23 May 2018 and despite suggesting that the matter “throws a very large boulder into the pond of [the extant family] proceedings”, it is unclear how relevant that factor might have been to the decision to make the order in the terms sought.

As an interesting aside, when the police first issued their application they requested that disclosure be delayed until after the father had arrived in England for the purpose of the listed hearing on 23 May 2018. Holman J observed that he would not have been willing to do that because the order of 13 March 2018 put the father under a positive obligation to travel to England in time for the hearing. He observed that to delay disclosure of the CAFCASS report until a date after the father had arrived in England in the knowledge that English police planned to arrest him and that that was the purpose for delaying disclosure, the court and the judge would become implicated in a form of entrapment which Holman J was “not in the circumstances of this case willing to do”. Thus in any such case a distinction must be drawn between delay which allows for an arrest to take place and any order which amounts in practical terms to an entrapment so that police may effect an arrest. For obvious reasons the Court will be reluctant to order the latter.