K (Infants), Re; Official Solicitor to the Supreme Court v K

APPEAL from the Court of Appeal (Upjohn, Davies and Russell L.JJ.).

This was an appeal by the Official Solicitor of the Supreme Court, who was a party in these proceedings as guardian ad litem of two infants, from an order of the Court of Appeal (Upjohn, Davies and Russell L.JJ.) dated October 30, 1962, reversing an order of Ungoed-Thomas J. made on July 3, 1962, upon a preliminary point that arose and was determined by the judge at the hearing of the application by originating summons taken out by the infants' mother for an order that the infants be made wards of court and for orders for, inter alia, custody, care and control and access.

The question at issue in this appeal was one of principle, namely, whether a judge of the Chancery Division exercising jurisdiction over infants in wardship proceedings may receive, and 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 infant without disclosing that report to any of the other parties to the proceedings in which the infant's interests are under consideration.

On October 28, 1960, the mother of two infant children, a boy born in June, 1952, and his sister born in July, 1953, applied by originating summons that the infants be made wards of court, and for orders, inter alia, for custody, care and control, and access. The marriage of the mother and father had taken place in December, 1951. In February, 1960, the mother had left the father, taking the children with her, and they had remained with her. The mother made the father and the children respondents to the summons and when the matter came before the master he directed that the children were not to be served with the proceedings. Evidence was filed by the parents in the usual way upon which the master considered that it was a case in which an order for the appointment of a guardian ad litem of the children should be made, they already technically being parties. On July 21, 1961, the Official Solicitor was appointed.

The Official Solicitor made inquiries and interviewed both parents and the children and on October 23, 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. That statement of facts was communicated to both parents and no objection was taken to it at the hearing of the appeal. The statement of facts was accompanied by a confidential report by the Official Solicitor to the court which was not disclosed to the court at the hearing of the appeal or to either parent. On November 23, 1961, the master made an order for the children to attend the named doctor recommended by the Official Solicitor. The children, with their mother, attended the doctor on December 13, 1961. The doctor also saw the father on January 4, 1962, and the mother again on January 31, 1962.

The Official Solicitor made a further statement of facts on February 7, 1962, which, after briefly setting out those 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 continued to be educated at their present schools 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. That statement of facts which 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. To that confidential report were annexed reports by the doctor in the form of letters addressed to the Official Solicitor.

The summons was partly heard in chambers. Ungoed-Thomas J. read the confidential reports (and annexures) by the Official Solicitor but decided that he ought not either completely to disregard them in reaching his conclusion nor to make a full disclosure of them to the mother personally. It was contended for the mother as a preliminary point that she was entitled as of right to see the whole of the reports of the Official Solicitor, including the doctor's reports annexed to them.

Ungoed-Thomas J. adjourned the matter into open court for judgment on the preliminary point and on July 3, 1962, held, inter alia, that the mother was not entitled as of right to insist on disclosure to her of the Official Solicitor's reports. The mother appealed contending that she personally was entitled as of right to see all reports placed before the judge by the Official Solicitor at all events unless he was prepared completely to disregard their contents in reaching his conclusion and she asked for an order accordingly. The Court of Appeal allowed the appeal. The Official Solicitor was granted leave to appeal to the House of Lords.