ITN’s Family Team recently hosted a seminar on how applications for police disclosure are dealt with in family cases, following our most recent Court of Appeal case of Re M.
The panel members were Somia Siddiq and Nadeem Thanvi of ITN Solicitors together with, Chris Barnes, barrister at 4 Paper Buildings. Family and criminal solicitors and barristers, along with official guardians were in attendance
Chris provided suggestions as to what lawyers should consider when representing clients, and to ensure that the directions sought allow such applications for disclosure to be properly argued. He further spoke about Re M and how the family court must “do what they can to undertake a fair process and that includes affording careful consideration of disclosure applications”.
Nadeem discussed how the approach of ITN has been different because departments within the firm have collaborated and learnt from each other for the benefit of the client, and that Re M was a prime example of how ITN are able to represent clients’ interests in different areas of law by combining expertise from the criminal and family departments.
There were some very interesting questions with informative responses from the panel.
This included the approach that guardians should take when faced with an application for disclosure by the police.
Chris and Somia discussed how allegations in criminal cases should receive careful scrutiny, ensuring any welfare issues are dealt with promptly and are not subject to further delay by an application through the family court. This can and should mean that children are properly placed or returned home without delay.
The panel were asked about the professional duties of a criminal lawyer to advise in light of the law in relation to disclosure from the family court.
The panel explained that there is a duty to provide a response to the Local Authority’s application within family proceedings which may well be disclosed to the police. The basic professional obligation is “what is in the best interests of the client” and in this situation it is something that is very difficult to advise on and it could end up instead as a moral dilemma for the client.
A criminal solicitor asked whether he should be seeking permission from the family court to obtain and use information to assist his client in criminal proceedings.
The panel stated that leave is required from the family courts to use the material in the criminal proceedings. The police should also be encouraged to seek this information but it should also be borne in mind that this may allow the police to gather corroborating evidence. Furthermore, it is possible that the criminal court will be more likely to allow the adducing of evidence through family proceedings and that applications on admissibility may well fail.
The panel were asked if they felt that the family courts were being used in terrorism cases to circumvent the normal criminal process.
Chris stated that there was not enough evidence to conclude that this is the case. Each case is dealt with differently on its own particular facts. Nadeem stated that in his experience counter terrorism officers will use all the legal tools available to obtain evidence and this is a strategy they would be aware of. Nadeem went on to say that there are an increasing number of terrorism suspects who are not being charged and instead being ‘released under investigation’. In doing so they will be looking at all avenues to obtain evidence.
An earlier blog post on Re M can be found here.
The full judgment of Re M can be found here.
If you require advice or information on any aspect of Family Law please contact our lawyers -Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty or Alexandra Wilks.