C (A Child) and Another
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 29 September 2015 |
| Neutral Citation | [2015] EWFC 79 |
| Court | Family Court |
| Date | 29 September 2015 |
| Docket Number | Case No: SQ14C00002 |
[2015] EWFC 79
IN THE FAMILY COURT
Sitting at the Royal Courts of Justice
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: SQ14C00002
Miss Claire Wills-Goldingham QC (instructed through direct access) for the applicants (Dr X and Y)
Mr Matthew Haynes (instructed by The Smith Partnership) for C's children's guardian
Mr Nicholas Bowen QC and Mr Jonathan Price (instructed by Farleys Solicitors LLP) for C's mother
Miss Heather Emmerson (instructed by Lettie Smythers) for the General Medical Council
Mr Alistair MacDonald QC and Mr Stephen Abberley (instructed by the local authority) for the local authority
Hearing date: 13 November 2014
Sir James Munby, President of the Family Division:
I have before me an unusual application. The fact that it is unusual, indeed virtually unprecedented, is telling, given the very extensive litigation there has been in this area of the law over the last thirty years or so.
Background
The background can be stated very shortly.
Dr X, as I shall refer to him, is a psychiatrist. Together with his colleague, Y, he runs a private clinic which I shall refer to as the Clinic.
In 2007, the local authority started care proceedings in relation to a child who I shall refer to as C. During the course of those proceedings, the court directed that C and C's mother should be assessed at the Clinic. In due course, Dr X produced a report for the court. It is important to note that Dr X was not merely instructed as an expert witness; he was also, while she was at the Clinic, the mother's treating physician, prescribing her drugs from time to time. For the purpose of the care proceedings the court also obtained an expert report from another psychiatrist, who I shall refer to as Dr Z.
C's mother was very critical of the care she had received from Dr X at the Clinic. She reported him to the General Medical Council (GMC). In due course — apparently more than five years later — the case was heard by a Fitness to Practise Panel of the Medical Practitioners Tribunal Service. Dr X faced seven allegations. Two were withdrawn by the GMC; each of the other five was found not proved.
The application
The application by Dr X and Y falls into two parts. First, they seek disclosure and permission to use papers from the care proceedings. Secondly, they seek disclosure from the GMC and permission to use papers from the Fitness to Practise Panel proceedings. Only at a comparatively late stage did it become clear exactly what documents they want and for precisely what purpose(s).
Initially, their case was set out, and at considerable length, in a statement by Dr X dated 27 June 2014 and in skeleton arguments by their counsel, Miss Claire Wills-Goldingham QC, dated 25 June 2014 and 4 September 2014. A Scott Schedule dated 21 August 2014 listed the documents of which they sought disclosure: 278 documents from the care proceedings (not all of which had been included in the care proceedings bundle), which I shall refer to as the family court documents, and a further 10 documents (not filed in the care proceedings) from the hearing before the Fitness to Practise Panel. The latter documents were referred to before me, and I shall refer to them, as the Bundle J documents. The Scott Schedule was prefaced by the words:
"Disclosure is sought of all the documents listed below, to enable there to be full transparency of the circumstances leading up to the placement of the child and mother at [the Clinic], their assessment at [the Clinic], the termination of the placement there and subsequent events."
Included in the list of family court documents, were psychological and psychiatric reports on the mother by various practitioners, including Dr Z, together with associated records (50 documents), many pages of medical records and associated documents relating to the mother (101 documents), and the records of assessment at the Clinic (15 documents), the latter listed under the heading 'Bundle H: Records of assessment at [the Clinic]'. Documents 234–263 included in the list of family court documents under the heading 'Additional medical records relevant to the Care Proceedings, not in the Bundle', comprised nurses notes, doctors notes and other medical records, relating to the period after the mother had left the Clinic and when she was being treated elsewhere by other clinicians. These documents, listed also in an annex to the skeleton of the GMC's counsel, Miss Heather Emmerson, were referred to before me, and I shall refer to them as, the Bundle H documents (they are to be distinguished from the documents listed under the heading 'Bundle H: Records of assessment at [the Clinic]' which are entirely different).
At that stage, the disclosure sought from the GMC was of the Bundle H documents and the Bundle J documents. The Bundle H documents comprised documents obtained by the GMC as part of its investigation and disclosed to Dr X. Some, but not all, were deployed before the Fitness to Practise Panel. The Bundle J documents comprised various witness statements relied on by the GMC or Dr X before the Fitness to Practise Panel.
In his statement, Dr X referred to what he called "a need for transparency for experts in the Family Court." He said that "reputable journalists", whom he identified, wished to "have access to the documents in order to write articles on the role of the expert in the Family Court and the functioning of the General Medical Council when regulating doctors acting as experts." He said that "misinformed press reporting has severely damaged my reputation and my ability to work in child protection or within the court arena" and that he been "unable to respond due to the confidentiality of the family court." The mother, in contrast, he said, had not merely spoken to the media, making what he said were "false allegations" about him, but had also made documents available on the internet, notwithstanding an injunction prohibiting her from doing so. He said that he had received a number of invitations to speak at professional conferences "but cannot make these presentations without disclosure being allowed." In Miss Wills-Goldingham's skeleton arguments it is said that Dr X's "otherwise unblemished reputation … has been cataclysmically damaged … through inaccurate reporting and internet postings" and that he has been "unfairly and unjustly pilloried by the mother and, through her, by the press."
On 3 November 2014 I made an order requiring Dr X and Y to set out "precisely" a list of the documents of which disclosure was sought and the purpose or purposes for which disclosure was sought. The response was in a further skeleton argument. This made clear that disclosure was now sought of only some (46) of the family court documents listed in the Scott Schedule. The reduced list still included a number of psychological and psychiatric reports on the mother, including those by Dr Z, the records of the assessment at the Clinic and the first eleven (Scott Schedule documents 234–244) of the Bundle H documents. It was also made clear that disclosure was no longer sought of the Bundle J documents.
The purpose for which disclosure was sought was described as follows:
"to enable [Dr X and Y] to have the original source material upon the basis of which they can discuss openly, orally and in written material, their experiences and Dr [X] in particular as a single joint expert in family court proceedings."
The skeleton went on to make clear that:
"it is not their intention to provide the documents to any third party, merely to have the source material available should anyone question the veracity of any statement made by them and to confirm what has been said by others. The documents would neither be given nor shown to a third party but might, in the event of challenge, be quoted from that original source material, the name of the child always being redacted but not those of [various specified professionals, including Dr Z]."
Mr Alistair MacDonald QC, on behalf of the local authority, characterised this as amounting to the claim that Dr X should be enabled to make disclosure of what he selects, to whom he selects, at a time he selects and without the intervention of either the court or the parties.
Dr X and Y were represented, as I have said, by Miss Claire Wills-Goldingham QC. Their application was opposed by C's guardian, represented by Mr Matthew Haynes, by C's mother, represented by Mr Nicholas Bowen QC and Mr Jonathan Price, by the GMC, represented, as I have mentioned, by Miss Heather Emmerson, and by the local authority, represented by Mr Alistair MacDonald QC and Mr Stephen Abberley.
Both in their skeleton arguments and in oral submissions, counsel's arguments appropriately ranged far and wide. At the end of the hearing, I indicated that further written submissions would be accepted, though not particularly encouraged. Both Dr X and the mother's counsel availed themselves of the opportunity.
I am very sorry that preparation of this judgment has been so delayed. It has had to give way to more pressing judgments that had to take priority.
The legal context
Before turning to the detail of the very interesting submissions which have been addressed to me, it is convenient first to survey the legal landscape.
The legal context: the common law
I start with long-established common law principle (I need not for present purposes distinguish between the common law, properly so-called, and equity). Because certain professional or commercial...
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