Gaskin v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE DUNN |
| Judgment Date | 27 June 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0627-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 1980 |
[1980] EWCA Civ J0627-6
In The Supreme Court of Judicature
Court of Appeal
On Appeal From the High Court of Justice
queek's Bench Division
Liverpool District Registry
(Mr. Justice Boreham)
The Master of the Rolls (Lord Denning)
Lord Justice Megaw and
Lord Justice Dunn
MR. G. WEIGHT, Q. C. and MR. T. KING (instructed by Messrs. Bulcraig & Davis, London agents for Messrs. E. Rex Makin & Co.) appeared on behalf of the Plaintiff (Appellant).
MR. E. SOMERSET-JONES, Q. C. and MR. 'I. TRIGGER (instructed "by the City Solicitor) appeared on behalf of the Defendants (Respondents)
THE MASTER OF THE ROILS: Graham Gaskin is now nearly 21. His mother died when he was six months old. He was taken into the care of the local authority - the Liverpool City Council - from the age of six months. He has a bad record. He was sent to various approved schools. He was sent to Borstal. He was afterwards arrested on a criminal charge, and was sent to prison for six months. Since he came out of prison, he has been unable to find work. He is living on social security. After this bad record, he blames it all on the Liverpool City Council He has got legal aid and has consulted solicitors, Messrs. E. Rex Makin & Co. Through them, he seeks to bring an action against the Liverpool City Council. He says that they were guilty of negligence and breach of duty whilst he was in their care. He attributes all his misfortunes - and his present state of mind -to their want of care. He has not actually started an action. He has made an application under section 31 of the Administration of Justice Act 1970. That section enables the court, if it thinks proper, to order a potential defendant to disclose any documents which are relevant to the case which the applicant wants to bring. So here Graham Gaskin says: "I cannot prove a case of want of care unless I can search through the records of the Liverpool City Council to see if I can find a case of negligence and breach of duty against them". In support of the application the solicitors produce the report of a Dr. Gould. I think I should read a good deal of it:
"He tells me that when his mother died, when he was six months old, he was put into care until he was 18 years old. His memories of his early life are necessarily vague but unpleasant and disturbing so far as he is concerned, he believes that he was moved about on about fourteen occasions, to variousfoster parents up to age 8 and afterwards to various institutions At one stage when he was about 13 years old, he was put into the care of a single man, remained with him on and off for a few weeks at a time, for an indefinite period and during that time was subject to repeated sexual assaults.
"As a child he was unhappy and disturbed, never feeling any identification with the people looking after him. When he was 9 years old he was admitted to Mostyn Hospital and put into a men's psychiatric ward for three months, this was frightening and upsetting, he is unable to explain how he felt, has no real idea why he was admitted. He was seeing a psychiatrist, Dr. Jarvis, from time to time until he was about 15 years old, was attending a day clinics in West Derby, from age 7 to 14 was for some reason given Epanutin, but he does not recall ever having suffered any fits or blackouts, believes it was in order to sedate him because he was overactive and difficult to control, eventually he refused to take them anymore. When he was about 13 he underwent an BEG but of course never informed of the results.
"He received the benefit of an apparently fragmented schooling, from age 12 to 16 was in various approved schools, but he is able to read, write do sums, he passed three CSE examinations. Between 1976 and the end of 1977 he was in Borstal, he took his first job in February 1978 for about three months, repairing cookers, was then arrested on some criminal charge and sent away to prison for six months where he saw an ordinary doctor but never a psychiatrist".
Those are his complaints. The doctor gives his opinion in these words:
"The history, as he gives it, is one of neglect and mis-managementHe has been left with still severe psychological problems, his future must remain uncertain Certainly so far as I am concerned there is prima facie evidence in support of his claim to warrant production of his case notes".
It is obvious that the doctor had nothing to go by except the man statement. The history shows that this young man is a psychiatric case, mentally-disturbed, and quite useless to society. His solicitors now want to see all the reports so as to bolster up a claim for damages. Though what good damages would do him, I do not know.
In answer the Liverpool City Council say that all the reports, files and case notes were made confidentially by all those engaged in caring for him - the social workers, the doctors, and those who arranged for him to be boarded out. They say that those people would not make reports frankly and freely unless they knew that they would be kept confidential. They say that, if they are to carry out their obligations properly, they must not disclose them.
On the other hand, it is said on behalf of Graham Gaskin that, if things have gone wrong in the upbringing of a child like this, it is proper that there should be a judicial investigation - on the basis of full discovery of reports and records. It is said that it is very much in the public interest that the court should see the reports to enquire whether things were done wrongly or not.
Such is the contest. As always in these cases, it is a matter of balancing the public interests. The judge did balance them in accordance with the tests which have been laid down in the authorities. At the end of his judgment he said:
I am left in no doubt that it is necessary for theproper functioning of the child care service that the confidentiality of the relevant documents should be preserved. This is a very important service to which the interests - also very important - of the individual must, in my judgment, bow. I have no doubt that the public interest will be better served by refusing discovery and this I do"
The young man's advisers challenge that decision. They want to have the files to see what they can find out.
The principle underlying this case was stated in this court in In re D. (Infants) (1970) 1 Weekly Law Reports 599. That was a wards hip case. Counsel for the mother wanted to see the records and cross-examine the witnesses on them. This court held that - "because of the regulations in that case - the reports were to be kept confidential. I said at page 600:
I think that these case records should be regarded as privileged: just as are the records kept by a legal adviser. The child care officers should not be compelled to produce them, any more than legal advisers are compelled to produce their notes".
The principle of that case was accepted by this court and the House of Lords in P. v. N. S. P. C. C. (1978) Appeal Cases 171 In the Court of Appeal I said at page 191:
where children's officers compile confidential reports about the children in their cases, the courts will not compel the local authority to produce them, even though they would...
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