RC v CC (by her litigation friend the Official Solicitor) and X Local Authority [2014] EWHC 131 (COP)

CC was a young adult who lacked capacity.  She was adopted as a young child and for many years her birth mother had indirect ‘letter box’ contact with her.  A few years ago this indirect contact had stopped and RC made an application to the Court of Protection to have the indirect contact reinstated.  In the first instance, in accordance with the directions made by the court, the Local Authority filed a report by a clinical psychologist and three social worker statements.  The Official Solicitor argued that the psychologist’s report should be disclosed in redacted form and that the social worker statements should not be disclosed at all.

The issue of whether or not these reports should be disclosed to RC came before His Honour Judge Cardinal (RC v CC [2013] EWHC 1424 (COP)).  Judge Cardinal concluded that although RC should be permitted to see a redacted version of the psychologist’s report, she should not be permitted to see any of the three social workers’ statements.  Judge Cardinal refused RC permission to appeal.

Sir James Munby gave permission to appeal in accordance with rule 173(1)(b) on the basis that there was a compelling reason why the appeal should be heard; namely the need for an authoritative ruling on the very important principle that was raised.

He felt that on considering the law the jurisdiction to refuse disclosure of materials to the parties in children’s cases was clearly established.  He re-stated the approach in Dunn v Durham County Council [2012] EWCA 1654 and found that Judge Cardinal had correctly applied the test of ‘strict necessity’.  He found that the redacted version of the psychologist’s report provided RC with all the material she needed to conduct her case.

Turning to the disclosure of the three social workers’ statements, counsel for RC submitted that Judge Cardinal had misdirected himself, failing in fact to apply the law.  In giving judgement in Dunn v Durham County Council Lord Justice Maurice Kay stated:

“The disputed documents in the present case are not social work records in the strict sense but they are not dissimilar in nature and, in my view, they should attract the same approach.

What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.

Sir James Munby had also sat on the Dunn case and reviewing all the cases about disclosure said this:

“The casual reader of the White Book could be forgiven for gaining the impression from paragraph 31.3.33 that public interest immunity as referred to in CPR 31.19(1) applies to local authority social work records. The authority referred to is Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36. Reference is also made in the White Book to D v National Society for the Prevention of Cruelty to Children [1978] AC 171. As the Vice President has pointed out, however, the law has moved on, as shown by what Charles J said in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755.

We have not had full argument on the point so this is not the occasion to come to any definitive view. Nonetheless an examination of the authorities, locating them within the context of radically changed practice in the Family Division, is illuminating.

The starting point is the decision of the Court of Appeal in In re D (Infants) [1970] 1 WLR 599. It arose out of wardship proceedings (then, of course, still allocated to the Chancery Division) in relation to a child in the care of the local authority – a state of affairs which the Children Act 1989 now precludes. On the mother’s application, Whitford J had ordered the local authority to produce the case records kept by it pursuant to the Boarding-Out of Children Regulations 1955. On the local authority’s appeal his decision was reversed. The Court of Appeal (Lord Denning MR, Harman and Karminski LJJ) held that the case records were privileged from disclosure. It was accepted that there might be exceptional circumstances in which the court might overrule the privilege.

What is interesting is what the case reveals of practice in children cases at the time; a practice utterly different from anything that would be thought acceptable today. Harman LJ, who had previously been a judge of the Chancery Division and therefore spoke with authority of practice in wardship cases, said “I have never heard of discovery of documents in such a case.” Karminski LJ, who had previously been a judge of the Probate, Divorce and Admiralty Division and therefore spoke with authority of practice in cases in that Division relating to children, said “I have no recollection of any such order ever having been made.”

The next case is D v National Society for the Prevention of Cruelty to Children [1978] AC 171. The issue in that case was whether, in proceedings against it for alleged negligence in investigating a complaint of child abuse that had been made to it, the NSPCC was entitled to claim immunity from discovery of any documents that might reveal the identity of the complainant. The House of Lords held that the documents were privileged, by analogy with the well-established privilege protecting the identity of police informers (see Marks v Beyfus (1890) 25 QBD 494). The case therefore proceeded on a narrow basis, though approving reference was made to In re D.

The next case is the decision of the Court of Appeal in Gaskin v Liverpool City Council [1980] 1 WLR 1549, where the plaintiff, who had been in care as a child, brought proceedings against the local authority for negligence in their care of him. His application for disclosure of the case notes and records of his period in care was refused by Boreham J and the Court of Appeal (Lord Denning MR, Megaw and Dunn LJJ) on the ground of privilege. Lord Denning MR said (page 1553) that In re D “should now be regarded as of general application: not only in wardship or custody proceedings: but also in actions such as the present – for personal injury.”

After further skirmishing in this country, Mr Gaskin took his case to Strasbourg: Gaskin v United Kingdom (1989) 12 EHRR 36, [1990] 1 FLR 167. The court held that the refusal to allow him access to his records involved a breach of his rights under Article 8, because there was no independent mechanism for determining whether or not access should be permitted where the consent of third party contributors could not be obtained.

In the meantime there had been another significant decision at Strasbourg in a child care case. In W v United Kingdom (1988) 10 EHRR 29, para 64, the court laid down the principle that unless “the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests”, there will be a breach of Article 8.

No doubt the proceedings in Strasbourg played some part in prompting the enactment of the Access to Personal Files Act 1987.

The next case is Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36. It marked a significant break with previous practice. Although recognising that public interest immunity attached to social work records, Butler-Sloss LJ, with whom Lloyd and Nicholls LJJ agreed, said (page 43) that the practice of giving automatic immunity from production of such records “needs to be reconsidered.” She continued:

“On the application of a party to the proceedings for disclosure of relevant documents the judge has a duty to weigh up competing public interests … It is for the court on the application to decide whether the public interest in protecting the social work records overrides the public interest that the party to the proceedings should obtain the information he or she is seeking in order to obtain legal redress.”

She added this important observation:

“For my part, I consider that the strict approach developed in 1970 and followed in subsequent decisions must be relaxed in the light of the current legislation and modern opinion about greater openness in society. The DHSS issued guide-lines on the rights of access of the subject of social work files who had been in care in a series of directives from 1983. The Access to Personal Files Act 1987, which gives rights to access to certain documents, is another pointer in the same direction. The law of evidence must move with the times. None of this invalidates the general principle of public interest immunity, but it will undoubtedly have an effect on the balancing operation to be conducted by the judge.”

That was in December 1989. A month earlier, in November 1989, Watkins LJ and Waite J in R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330 had had to consider the disclosure of local authority records in the context of care proceedings where allegations of sexual abuse were being made against a parent. They emphasised (page 336) the interest of the child

“as part and parcel of its general welfare, not only in having its own voice sympathetically heard and its own needs sensitively considered but also in ensuring that its parents are given every proper opportunity of having the evidence fairly tested and preparing themselves in advance to meet the grave charges against them.”

They went on:

“Local authorities therefore have a high duty in law, not only on grounds of general fairness but also in the direct interest of a child whose welfare they serve, to be open in the disclosure of all relevant material affecting that child in their possession or power (excluding documents protected on established grounds of public immunity) which may be of assistance to the natural parent or parents in rebutting charges against one or both of them of in any way ill-treating the child.”

Despite the references in both cases to public interest immunity, we are already in attitude and approach a long way indeed away from In re D and Gaskin.

In 1995 there was another very significant decision in Strasbourg. In McMichael v United Kingdom (1995) 20 EHRR 205 there had been care proceedings in Scotland in which social services and medical reports were given to the court, but not disclosed to the parents, though the contents were made known to them. The court held that there had been violations of both Article 6 and Article 8. Having commented on the special nature of care proceedings, the court said (para 80):

“Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair – adversarial – trial “means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party”. In the context of the present case, the lack of disclosure of such vital documents as social reports is capable of affecting the ability of participating parents not only to influence the outcome of the children’s hearing in question but also to assess their prospects of making an appeal to the Sheriff Court.”

Moreover, as subsequent authority in Strasbourg shows, Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings. In TP and KM v United Kingdom [2001] 2 FLR 549 (para 82) the court said:

“The positive obligation on the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by the parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.”

While these developments were taking place at Strasbourg, there were of course important developments taking place here. The Children Act 1989 was implemented with effect from October 1991 and the Human Rights Act 1998 with effect from October 2000.

The effect of all this on developments in the practice of the family courts in relation to disclosure of local authority records can be traced through three decisions: first, Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204, 208-210 (Cazalet J), and then two cases to which Ms Connolly took us, Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, 772-779 (Charles J) and Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, paras [98]-[105], [140]-[151] (Munby J). In the latter case I said (para [154]):

“The local authority should at an early stage of the proceedings make full and frank disclosure to the other parties of all key documents in its possession or available to it … Early provision should then be afforded for inspection of any of these documents. Any objection to the disclosure or inspection of any document should be notified to the parties at the earliest possible stage in the proceedings and raised with the court by the local authority without delay.””

 

In this case, Counsel also argued that Judge Cardinal had given inadequate and unsustainable reasons to justify his conclusion.

Sir J Munby found that there was “no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC.  It is surprising…..that it is necessary that nothing in the three witness statements should be disclosed.  After all, a large amount of sensitive personal information about CC was disclosed to RC in the redacted psychologist’s report.  What is it about all the information that makes it necessary not to disclose it? And how does this square with the fact that Judge Cardinal thought that RC’s counsel should be able to see it?”  Sir J Munby agreed that, as it stood, Judge Cardinal’s decision provided inadequate justification for such a drastic restriction of what RC could see.

Lastly, counsel for RC argued that, in effect, Judge Cardinal had introduced a closed material procedure which was inappropriate in this particular case and is, as a matter of general principle, inappropriate to the Court of Protection.  Sir J Munby raised the point that this is “a process that is dependent upon counsel’s agreement – an agreement which counsel may feel unable to give and which the instructions from his lay client may prevent him giving”.  He stated that Judge Cardinal did not seem to have explored these aspects of the matter and had not considered other possible solutions, such as “allowing RC to read, but not to borrow or copy, suitable redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers”.

Sir J Munby allowed the appeal to the extent of setting aside the parts of Judge Cardinal’s order which related to the three social workers’ statements.  He ordered the matter should be returned to Judge Cardinal to reconsider his decision and judgement.

 

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