A local authority v W and another [2003] EWHC 1624 (Fam)

Disclosure – confidential information – care proceedings – police operation

 

This was an application by a local authority in care proceedings in relation to a number of children, seeking directions as to the extent to which it could disclose to the other parties to the proceedings, and in particular to the mother, a sensitive piece of confidential information received from the police.

 

The children’s mother, M, had a history of drug addiction, a criminal record and had been involved in a number of unsatisfactory sexual relationships. The five oldest children had been placed with their maternal grandparents, under interim care orders. The grandparents could no longer cope and the local authority resolved to put the children back with M, keeping the interim care orders in place. At around the same time, the social workers received information from the local police that they had information suggesting that a man believed to be a supplier of heroin and crack was living at M’s address. The social workers were told by the police that they were not at liberty to disclose this information to any family member or their legal representatives since to do so would prejudice a large police operation and potentially put the informer’s life at risk. The social workers visited the house at this time and the house was clean and cosy although there was a man present. The social workers did not question M as to the identity of the man, however, and the children were allowed to return to M’s care. M had signed an agreement with the local authority as a condition of the children returning to her agreeing not to associate with drug users or allow anyone to stay the night without agreement.

 

The local authority sought permission to disclose the police information to M’s legal advisers, provided that those advisers were willing not to disclose the information to their client without a further order of the court. M and her legal advisers had not been given notice of this application. The police submitted that disclosure should not be permitted either to the mother or to her legal advisers on the ground that disclosure would prejudice the covert police operation and that, if the disclosure was made in the form originally provided, the informant could be identified. The Guardian, G, submitted that at some point M was going to have to be confronted with the proposition that she had breached her agreement with the local authority and that a man had been living in the house. If it was part of the local authority case that the man in question was a drug dealer then that allegation had to be put to her, and she had to have the opportunity to answer it. Disclosure should therefore be permitted of the essential allegations in a form that the police agreed with.

 

The judge held that the weight of authority was that non-disclosure of relevant information in care proceedings was the exception rather than the rule, and non-disclosure should only be ordered when the case for it was compelling.  In considering whether the information should be disclosed fundamental and potentially conflicting issues of public policy had to be balanced. The powerful factors against disclosure in this case were the need to protect the integrity of the police investigation into serious criminal activities; and preserving the safety and anonymity of the informant. An additional factor was that disclosure might prohibit the police from providing the local authority with important confidential information in the future. The case clearly required these factors to be balanced. An important consideration in the balancing exercise was whether the information could be provided to M in a way that minimised the risks attached to disclosure.  M had to be informed of the substance of the allegation against her. However, she did not have to be given the information in the form in which it was received by the local authority as this could identify the informant. M could be given the substance of the allegation. M’s solicitors were entitled to know that a series of applications had been made to the court culminating in the current application and to know the substance and the wider picture of the allegation against M so that they could be satisfied that the process was fair, so long as they did not pass to M any information beyond that directed.

 

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