L.a.m. (ap) V. A Scottish Local Authority
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 113 |
| Court | Court of Session |
| Published date | 01 July 2011 |
| Year | 2011 |
| Date | 30 June 2011 |
| Docket Number | PD1471/08 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 113 | |
| PD1471/08 | OPINION OF LORD STEWART in the cause L.A.M. [A.P.] Pursuer; against A SCOTTISH LOCAL AUTHORITY Defenders: ________________ |
Pursuer: Guinnane; Drummond Miller LLP
Defenders: Stuart; HBM Sayers
Havers: Poole; Scottish Government Legal Directorate
30 June 2011
[1] The pursuer claims damages for the alleged culpable failure of the defenders' Social Work Department to protect her from child sex abuse. A four week proof has been fixed for 4 October 2011.
[2] The abuse is said to have been carried on against the pursuer and two step-sisters. The alleged abusers are the pursuer's step-father and natural mother and their acquaintances. The family moved from England to Scotland in August 1995. Part of the case against the defenders is that they did not take account of the back-story of abuse in England.
[3] In 2005 the Scottish Executive published a report of its investigation into the case. The published Report at Appendix 2 contains the outlines of 222 officially recorded concerns about possible sexual abuse, physical abuse, health problems and neglect of the three siblings. The text of the Report contains additional detail of some of the concerns.
[4] Appendix 2 does not identify the individual victims: but it does give the date of each recorded concern and the age of the victim at the time. Therefore it is possible to know which of the three children was involved in each instance. It follows that the pursuer is already in a position to know, at least in outline, about all the concerns listed in Appendix 2.
[5] The names of all seven alleged perpetrators were widely published at the time of their arrests and when charges were dropped. The information is still readily available on the internet.
[6] Paragraph 7 of the Report states:
"As a result of our examination of all of the records we established key facts in the children's lives in both [Scotland] and England. These findings of fact name the children and their families, the staff involved from all of the agencies, the people who were charged and those who were arrested but not charged. Given the unique circumstances and media coverage which has named the people who were arrested, it is not possible to anonymise the findings of fact and it would not be in the interests of the children for these to be published. The findings of fact have been agreed by all of the agencies concerned."
[7] The findings referred to in the published Report are incorporated in two volumes. Findings in Fact Volume 1 relates to the period when the family was resident in England. Findings in Fact Volume 2 relates to the period from August 2005 when the family was resident in the defenders' local authority area. Altogether there are 250 pages of findings.
[8] In her pleadings the pursuer avers that the defenders' Chief Executive signed and agreed the Findings in Fact [Record 2009, No 19 of Process, 6D]. The defenders impliedly admitted this averment. The pursuer calls on the defenders to produce the Findings in Fact.
[9] The pursuer makes averments about the abuse of her step-sisters. She avers: "[the] neglect of the pursuer's siblings ought to have been taken into account by the defenders in assessing whether or not the pursuer was safe within the family home." The pleadings refer to "the concerns of neglect, suspected physical and sexual abuse as well as health concerns to which the pursuer and her siblings were subjected [sic]..." Reference is made to evidence of abuse and neglect that ought to have led to the removal of the pursuer and her siblings from the family home.
[10] On 26 January 2011 I granted the pursuer's motion, amended at the bar, for recovery of the Findings in Fact Volumes 1 and 2. The amended calls entitle the pursuer to excerpts of the entries in the respective volumes insofar as "showing or tending to show the nature and extent of the abuse suffered by the pursuer and her sisters before they came to live [in Scotland] in 1995" and "once they came to live [in Scotland] in 1995 and whilst under the care of the Social Work Department of the Defenders". Importantly the relevance of the amended calls to the issues raised on Record, in particular the relevance of the reference to the abuse suffered by the pursuer's sisters, has not been challenged. Recovery per se is not opposed by the defenders. The defenders adopt the grounds of opposition stated by the Scottish Ministers.
[11] Recovery is opposed by the Scottish Ministers, as havers. Their object is to ensure that the Convention rights of third parties so far as engaged are protected, in relation to, in the case of alleged abusers, the presumption of innocence and protection of reputation, and, in the case of claimed victims, in relation to sensitive personal information. At the instance of the havers the disclosure authorised by the interlocutor of 26 January 2011 is subject to the qualification "save insofar as disclosure of those entries in Volumes 1 and 2 would contravene the Convention rights of any person".
[12] In granting the pursuer's motion for recovery, I understood, as did parties, that the documents would be lodged with the Court in a sealed envelope marked "confidential". The confidential envelope was lodged on 16 February 2011 and marked No 21 of Process. Intimation was made to parties on that day. A motion to open up the confidential envelope was enrolled on behalf of the pursuer.
[13] On 25 February 2011 I granted the pursuer's motion to open up the confidential envelope No 21 of process for the purpose simply of familiarising myself with the contents. There was no appearance for the defenders. At that stage the procedure proposed by the havers, as set out in their opposition to the motion, was as follows:
"1 The Court should open up the confidential envelope and carry out a preliminary perusal of the Findings, without any further disclosure to any party;
2. Thereafter, the Court should fix a further hearing to consider how best the documents may be produced compatibly with Convention rights, and order intimation of that hearing upon any person whose Convention rights are likely to be affected. Those persons are (i) five persons named on Record as alleged victims or perpetrators of abuse, (ii) ten persons named in the Findings, unless the court, having looked at the Findings, [takes the view] that those people can be sufficiently anonymised by redaction of their identities from the Findings to protect their Article 8 rights;
3. Prior to the hearing the Scottish Ministers will lodge copies of the documents showing suggested redactions which, in the Ministers' view, are necessary to respect the Convention rights of third parties;
4. At that hearing the Court should hear all parties and thereafter decide on the redactions required, if any, and upon any conditions as to disclosure of the redacted documents necessary for compliance with third parties' Convention rights."
[14] In terms of paragraph 3 of the proposed procedure, redacted versions of the Findings in Fact Volumes 1 and 2 were lodged by the havers in a confidential envelope on 16 March 2011. Parties had already agreed, on 25 February, that I could open this second envelope when lodged. The proposed redactions consist of (1) anonymisation of all alleged abusers except the pursuer's step-father and the pursuer's mother and (2) removal by "whiting out" of sensitive personal information relating to the siblings. By e-mail dated 5 April the agents for the havers identified 26 April as the first date when counsel would be available to address me further.
[15] By 12 April I had read all the material twice and formed provisional views about disclosure, intimation and the appropriate extent of redaction. I reached the view then and remain of the view that the whole contents are relevant and that disclosure of the whole contents is in principle necessary for the fair resolution of the pursuer's claim [Science Research Council v Nassé [1980] AC 1028]. On 15 April I appointed the case to call By Order on 28 April. I ordered the pursuer's solicitors to intimate the hearing to the two step-sisters, the step-father and the mother. I ordered intimation on the understanding that this had been acquiesced in by pursuer's counsel on 25 February.
[16] This understanding was mistaken. The pursuer's solicitors reverted to my clerk to say that the issue of intimation remained in contention. I waived the requirement for intimation of the hearing at that stage pending further submissions. The case called By Order on 28 April when I heard further submissions.
[17] Counsel for the pursuer moved me to correct the interlocutor of 15 April quoad intimation in terms of RCS Rule 4.15 (6) and to release the documents to the pursuer's agents without intimation to any other party. There could be no hearing on redactions, it was submitted, without access to the documents. There was no appearance for the defenders.
[18] Counsel for the havers conceded that the interlocutor could competently be corrected in terms of RCS Rule 4.15 (6) and took a position of neutrality on the question whether or not the interlocutor should be corrected.
[19] As regards the Convention rights of third parties, counsel for the havers told me that the Scottish Ministers had given consideration to the questions (1) whether the Article 6 ECHR rights of the alleged perpetrators are engaged and (2) whether the Article 8 ECHR rights of both alleged perpetrators and claimed victims are engaged.
[20] In relation to Article 6 ECHR rights counsel stated that the view had been taken that these rights are not engaged. Counsel submitted that officials may publish information about criminal investigations and criminal charges provided that official statements do not encourage a belief in guilt or prejudge the facts: Article 6 protection flies off once the decision not to prosecute has been made [Krause v Switzerland 7986/77 (3...
To continue reading
Request your trial