Oxfordshire County Council v M

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEYN,THE PRESIDENT,LORD JUSTICE KENNEDY
Judgment Date27 October 1993
Judgment citation (vLex)[1993] EWCA Civ J1027-3
Date27 October 1993
CourtCourt of Appeal (Civil Division)
Re D and M (Minors)

[1993] EWCA Civ J1027-3

(Order of his Honour Judge Harold Wilson)

Before: The President Lord Justice Steyn Lord Justice Kennedy

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Mr. J BAKER (instructed by Bower and Bailey, Oxford) appeared on behalf of the mother.

MISS G. MIDDLETON (instructed by Linnells Solicitor, Oxford OX1 4HX) appeared on behalf of the second Respondent.

MR. L. CURRAN (Instructed by Oxfordshire County Council legal department) appeared on behalf of the Local Authority.

MISS J. Hall appeared on behalf of the Guardian ad Litem.

MISS S. NAX appeared on behalf of the third Respondent.

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( )

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Wednesday 27th October 1993

THE PRESIDENT
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THE PRESIDENTThe court has before it appeals from interlocutory orders made by his Honour Judge Harold Wilson at Oxford County Court on 11th October 1993. The relevant orders were made at a hearing for directions in Care proceedings brought by the Oxfordshire County Court pursuant to section 31 of the Children Act 1989. The chronological history of this matter can be briefly stated. I am grateful for the assistance of a chronology prepared by the first respondent to the Care proceedings, the principal appellant. The proceedings concern two girls aged four and two years of age. Their mother is the first respondent to the care proceedings. They are the children of different fathers. The father of the younger child, T, is the second respondent in the care proceedings. The father of the older girl, L, is the third respondent. The girls themselves are parties to the proceedings and are represented by a Guardian ad litem. The mother has two older children, both boys, now aged nine and eight years respectively. They were both born to her and to her former husband, whom she divorced in 1987. The older girl, L, is the child of the mother by her second husband, the third respondent, from whom she separated in 1990. The younger daughter, T, is the child of her association with the second respondent. The mother presently lives in the same household as the second respondent with the two girls.

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In 1992, the Oxfordshire County Council commenced care proceedings in respect of the two older boys on the ground that they were suffering, and were likely to suffer significant harm, as a result of neglect. In February 1993, care orders were made in respect of both boys by a Family Proceedings Court and the boys were placed with foster parents. In June 1993, the older boy disclosed to his foster mother that he had been sexually abused, inter alia, by his mother. She reported this, and both boys were subsequently interviewed separately by a child protection investigation team. The older boy repeated the allegations at a disclosure interview which was video recorded. In July, both boys were examined by a paediatrician, instructed by the Social Services Department.

5

On 22nd July 1993, the Oxfordshire County Council began care proceedings in respect of the two girls on the ground that they were likely to suffering significant harm, having regard to the matters which were alleged to have taken place with regard to the older boys. On 22nd July 1993, a Family Proceedings Court made interim supervision orders in respect of both girls, and meanwhile they remained at home in the care of their mother, subject to the supervision order. In September 1993, the Family Proceedings Court transferred the care proceedings to the Oxford County Court.

At a Directions hearing held on 28th September 1993, his Honour Judge Paul Clark made a number of orders by consent, including, at paragraph 4, the following direction: "The first and second respondent do have leave to disclose the video recording of the interview of J and A" [the older boys] dated 13th June 1993 and copies of documents in the matter held by the court to the consultant psychiatrist instructed on behalf of the first and second respondent, whose report shall be filed and served by the 29th November 1993."

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At the same hearing, the judge gave directions that the Guardian ad Litem should also have leave to disclose copies of documents in the matter held by the court to a consultant psychiatrist to be instructed by her on behalf of the two girls. He directed that the Guardian should file her report by 6th December 1993. He finally ordered that the matter should be listed for further directions on 11th October.

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On 11th October, the Directions hearing came before His Honour Judge Harold Wilson at the Oxford County Court. On that occasion, the first respondent, the mother, and the second respondent, the father of T, applied to the judge for a direction that clause (4) of Judge Paul Clarke's order, which I have cited, should be amended by removing the requirement to disclose and file the consultant psychiatrist's report. Counsel for the mother also sought leave to consult a child psychiatrist with a view to commenting on the allegations made by the boys and also to commenting on evidence filed by the consultant child psychiatrist instructed by the County Council. Counsel also sought leave for the mother to be allowed to disclose that material to an adult psychiatrist whom she proposed to consult, and further leave to disclose the case material to a paediatrician, whom she wished to consult. The second respondent joined in the mother's application to amend clause (4) of the order made by Judge Paul Clarke on 28th September. He also joined in the application for leave to disclose material to a paediatrician. These applications were all made upon the basis that if the leave sought were to be granted and reports consequently obtained, the respondents should not then be under any obligation to disclose the report. In other words, they would be at liberty to withhold them, if they should prove to be unfavourable to their cases.

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The learned county court judge was confronted with two conflicting decisions of judges of the Family Division of the High Court. They were, firstly, a decision of Douglas Brown J in Barking and Dagenham London Borough Council v O and another [1993] 3 WLR 493, also reported in [1993] 4 AER 59 and a decision of Thorpe J made subsequently and reported in The Times Newspaper on the 18th August 1993, in the case of Essex County Council v R. The court has the advantage of a transcript of the judgment delivered by Thorpe J, which has not yet been reported in the law reports. The decision of Douglas Brown J was, in fact, made on 12th March 1993. In that case the judge had been faced with applications very similar to those which were being made to his Honour Judge Harold Wilson. The headnote in 3 WLR at 493 reads as follows:

"In September 1992, the local authority instituted care proceedings under the Children Act 1989 relating to two half-brothers, then aged six and two, who were then in the care of the mother. Interim care orders were made and the substantive hearing date fixed. On the summons for directions, orders were made, inter alia, that the mother file and serve medical reports from three named doctors which related to her and which had been commissioned on her behalf on the advice of her legal advisers. A further order was made that the mother file and serve hospital reports relating to the boys. The orders were made by consent. Ten days before the substantive hearing the mother applied to amend the order requiring her to file and serve the medical reports relating to her by the addition of the words, "if the mother intends to rely on them."

On the question whether disclosure could be ordered by the court. It was held: granting the application, that since proceedings under the Children Act 1989 were adversarial in the sense that each party was entitled to be heard, be represented by an advocate and challenge opposing evidence in cross-examination they were proceedings in which legal professional privilege could not be overridden; that in the absence of waiver by the party concerned, the court had no power to order disclosure of legally professionally privileged documents and that therefore the mother was not obliged to disclose medical reports obtained by her solicitor unless she wished to do so."

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There has been no appeal directly from that decision. The decision was cited to Judge Harold Wilson. In the course of his judgment, Douglas Brown J referred to cases dealing with legal privilege and at page 495 of the report at G he said:

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"In these circumstances, says Mr. Rippon, the law is clear. Medical reports made on behalf of a party to litigation on the advice of legal advisers are privileged documents and, in the absence of a waiver, no order for disclosure can be made. He relied on Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162. He drew my attention in particular to the judgment of Roskill LJ, who, in the course of his judgment, at p.169 made reference to the passage from the judgment of Lord Denning MR In re. Saxton, deceased [1962] 1 WLR 968, 972:

"The court could not order the report of either expert to be shown to the other side before the trial. That could only be done by agreement. This is the familiar practice in all cases where experts are called, such as patent cases, Factory Act cases (where engineers are employed) and personal injury cases (where doctors are employed). The reports of experts are often exchanged by agreement, but no compulsion on either side is exercised: See Worral v Reich [1955] 1 QB 296. The reason is because, to our way of thinking, the expert should be allowed to give his report fully and frankly to the party who employs him with all its strength and weakness, and not...

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