K (Infants), Re; Official Solicitor to the Supreme Court v K
| Jurisdiction | England & Wales |
| Judgment Date | 30 October 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1030-5 |
| Court | Court of Appeal |
| Date | 30 October 1962 |
[1962] EWCA Civ J1030-5
Lord Justice Upjohn,
Lord Justice Davies, and
Lord Justice Russell.
In The Supreme Court of Judicature
Court of Appeal
Mr R. W. Goff. Q. C. and Mr N. C. H. Browne-Wilkihson (instructed Kingsford Dorman & Co.) appeared on behalf of the Appellant Hother (Applicant).
Mr Peter Foster, Q. C. and Mr W. J. C. Tonge (instructed by The Official Solicitor, Royal Courts of Justice) appeared on behalf of The Official Solicitor, guardian ad litem for the infants.
Mr Mark Nesbitt (instructed by Bentleys, Stckes & Lowless) appeared on behalf of the Respondent Father (Respondent).
This Appeal from an Order of Mr Justice Ungoed-Thomas on the 3rd July 1962 raises a short but extremely important point of principle in wardship proceedings in the Chancery Division.
The question is whether the Judge may receiverand treat as part of the evidence before him in reaching his conclusion, a confidential report submitted to him by the guardian ad litem of the infants without disclosing that report to auy other of the parties to the proceedings in which the infants' interests are under consideration.
However, it has not been suggested that it has ever been the practice (and certainly In my experience I have never known of it) for a guardian ad litem other than the Official Solicitor to submit to the Court any reports not at. the seme time disclosed to the other parties to the proceedings, so that the real issue is whether the Official Solicitor, as guardian ad litem, has the right to submit to the Judge a confidential report containing possibly material facts or material opinions of experts which the Judge may receive and take into consideration when determining the proper order to be made without disclosing it to any other Party.
The facts of this case can be stated extremely briefly for it comes before us as a matter of principle and quite rightly only the barest outline of the facts has been put before us.
The marriage of the mother and father took place in December 1951. The elder child, a boy, was born in June 1952 and a sister was born in July 1953.
In February 1960 the mother left the father taking the children with her and bo date they remain with her. On the 28th October 1960 the mother instituted wardship proceedings making the father and the children Respondents. It was in fact wrong to make the children Respondents withoutan order or direction from the Master or Judge: see Re ( An Infant 1950 Ch. 629), where the proper practice is laid down. When the matter came before the Master he therefore directed that the children were not to be served with the proceedings.
Evidence was then filed by the parents in the usual way. The learned Judge has not yet adjudicated thereon and so very properly none of it has been placed before us.
Both parents concede that for the purposes of this appeal the merits so far as the parents are concerned are irrelevant all we know is that the mother makes the most serious charges against the father which he totally denies. The nature of these charges is not known to us.
When the matter came before the Master, he considered that upon the evidence then filed it was a case in which an order for the appointment of a guardian ad litem of the fchildren should be made, they alrdady technically being parties. On the 21st July 1961, the Official Solicitor was appointed.
The Official Solicitor made enquiries and interviewed both parents and the children and on the 23rd October 1961 he made a report by way of a Statement of Facts to the Court in which he stated that before he could make any recommendations he felt the need of medical evidence.
He submitted that the mother should be directed to take the infants to see a named qualified Medical Practitioner in Psychiatry. This Statement of Pacts was communicated to both parents and no objection is taken to it before us. It also appears that this Statement of Facto was accompanied by a Confidential Report by the Official Solicitor to the Court which has not been disclosed to us or to either parent.
The matter then came before the Master again and on the 23rd November 1961 an order was made for the children to attend the named Doctor recommended by the Official Solicitor, The children, with their mother attended the Doctor on the 13th December 1961. The Doctor also saw thefather on the 4th January 1962 and the mother again on the 31st January 1962.
The Official Solicitor made a further Statement of Facts on the 7th February 1962 which, after briefly setting out these visits to the Doctor by the parties, recommended:- (a) that care and control of the infants be given to the mother on condition that she brought them to see the Doctor at six monthly intervals until further order; (b) that the infants continue to be educated at their present Bchools until further order; (c) that the father be allowed access to the infants every other Sunday between the hours of 2 p. m. and 7 p. m. or such other times as the mother and father might mutually agree.
This Statement of Pacts whioh was disclosed to the parents was accompanied by a further Confidential Report by the Official Solicitor to the Court of the same date which was not disclosed to the parents. We learn from the Judgment of the learned Judge that to this Confidential Report are annexed Reports by the Doctor in the form of letters addressed to the Official Solicitor.
The learned Judge read these Confidential Reports (and annexures) by the Ofilcial Solicitor but decided, as he stated In his Judgment, that he ought not either completely to disregard them in reaching his conclusion nor on the other hand, to raalce a full disclosure of them to the parents personally.
From this decision the mother appeals, contending that she personally is entitled as of right to see all reports placed before the learned Judge by the Official Solicitor; at all events unless he is prepared completely to disregard their contents In reaching his conclusion.
That is the whole question before us. Whatever may be his strict right, the Respondent Father does not seek Personally to see these Reports.
Before dealing with this question, I shall mention two points to dispose of them briefly. First it sometimeshappens, and did so in this case, that having read Confidential Reports put before him by the Official Solicitor the judge declares his willingness to disclose to the parties' legal advisors the contents of the Confidential Reports provided they are not disclosed to the paroles personally. This is an excellent and commons ense practice and, until this oase, I have never known any objection to it, but when the learned Judge suggested it in this case the mother took the objection that she was personally entitled to see the Reports and instructed her Counsel that he was not to see or read any such documents to which access was denied to her. This may seem surprising having regard to the disclosed recommendation of the Official Solicitor in his second Statement of Facts that the mother should have care and control of the infants, but of course she is entitled to have this matter determined as a question of principle if she so desires.
The second point is that if and when such Reports are disclosed to the parties or to their legal advisers, it may appear that the Reports are not on oath, and may contain annexed reports not on oath; the question arises as to the admissibility in evidence of such reports and as to the right to cross-examine thereon.
The learned Judge, towards the conclusion of his Judgment, expressed the view that a party was not entitled to insist in all cases as of right, that disclosed statements be made on oath by the Official Solicitor or by other persons making a report. He did, however, think that questioning, and if necessary crossexamination, should be allowed on disclosed Statements and on Reports annexed thereto.
As at present advised, I see no reason to disagree wi£h the learned Judge's observations on these matters. How far statements by the Official Solicitor should be on oath must be a question of discretion for the Judge according to the circumstances of each case0 In many case. as thelearned Judge, said there would be no practioal advantage in requiring such reports to be on oath; in otlier cases however, if the Official Solicitor desires to report on primary facts, for example as to the conduct of one of the parents, it may well be right thairhe should swear to such oonduot or, if he cannot do so himself, should procure a sworn statement from some person who can strictly depose to such conduct.
I entirely agree with the learned Judge that questioning and, if necessary, cross-examination should be allowed on all disclosed statements and reports annexed thereto, and if necessary that the authors of such reports uhould be compelled to attend for cross-examination.
However, I should point out that in this appeal these questions have net been fully argued for they do not yet arise as none of the Confidential Reports nor their annexures have as yet been disclosed.
On the main question we have heard a most interesting account from Mr Foster for the Official Solicitor, on the origin of the office of the Official Solicitor and of his practice so far as it can be traced, in making reports to the Court. He seems to have been the successor to the Solicitor to the Suitors Fund and was first appointed eo nomiue by Lord Hatherly, the Lord Chancellor, in 1871. Since then this office has grown in stature and usefulness.
The Official Solicitor performs many functions of great benefit and utility to this Court and to the High Court, Re is not in any way, of course, confined to...
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