Oxfordshire County Council v L and F
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 1996 |
| Court | Family Division |
STUART-WHITE, J
Care proceedings – proceedings concluded – disclosure of documents and information relating to the proceedings – confidentiality – application for disclosure to non-party –principles to be applied.
Guardian ad litem – acting for child during care proceedings – after conclusion of care proceedings application for disclosure of information relating to child – whether guardian ad litem had a locus standi.
In 1994 care proceedings were commenced in respect of a baby boy aged 4 months who had suffered severe injuries as a result of shaking. The local authority commenced the proceedings based on the allegation that the baby boy's mother had caused the injuries. The local authority a short time later issued separate proceedings in respect of twin boys aged 4½ who were the children of a woman who had acted as a child-minder of the baby boy on the alternative allegation that the injuries to the baby boy were caused by her. The two sets of proceedings were consolidated.
The issue as to the identity of the perpetrator of the injuries was tried, in February 1995, separately from and prior to consideration of the consequences of the finding on that issue. The Judge found that the perpetrator was the child-minder. As a result of that finding the proceedings in relation to the baby boy were dismissed as there was no reason to believe that he would be at any risk in the care of his parents. A risk assessment was then undertaken in relation to the twin boys. It was concluded that as they were much older than the baby boy they were not at any risk from their parents and in July 1995 leave was given for the local authority to withdraw that set of proceedings.
The day after the conclusion of the proceedings the police applied for disclosure of some of the evidence and the judgment. The application stated that the information was to be treated as confidential information to be used by the police to shape the nature of their inquiries in the investigation of alleged criminal offences but not to be used as evidence in any criminal proceedings that might follow. The police also sought disclosure in relation to their child protection functions. The local authority also sought leave to disclose to the police reports produced in the course of the assessment of the child-minder.
Later, the mother of the baby boy contacted the Mail on Sunday and gave the name and address of the child-minder to a reporter. The reporter called on the child-minder and, as a result, she and her husband contacted their solicitors. An ex parte application was made to the High Court and injunctions were granted. The first prohibited publication of any matter which identified or was calculated to lead to the identification of any of the children and prohibiting the solicitation of information about them; the second forbade the baby boy's parents from publishing or disclosing any document or other information about the proceedings. The parents applied to vary the injunctions.
At the ensuing proceedings by way of applications for disclosure and variation of the
injunctions the guardian ad litem of the twin boys appeared and was represented but the baby boy was not represented by a guardian ad litem or otherwise. The question arose as to the locus standi of the guardian ad litem of the twins.
Held – (1) The issue of the locus standi of the guardian ad litem for the twins was far from free from difficulty. However, on an application such as the present, it was desirable for the child to be represented. The injunctions in respect of the baby boy's parents and their application to vary them were made well after the conclusion of the care proceedings and the interests of the twins were significantly affected by the application. For this reason also it was desirable for the twins to be represented. There was an imbalance in that the twins were represented by a guardian ad litem but the baby boy was not. This was unfortunate but did not constitute a reason for denying representation to the twins.
(2) The court had jurisdiction to entertain an application for disclosure of documents arising in care proceedings by a person who was not a party to those proceedings. The principles to be applied in exercising the jurisdiction in Children Act cases were the same as those which applied in wardship cases. The court had an unfettered discretion which must be exercised judicially in accordance with established principles. Those principles involved considering the interests of the child concerned; the public interest in ensuring that frankness should prevail in children cases by preserving confidentiality; and the public interest in upholding the law by providing relevant evidence for use in other proceedings. Although the child's welfare was not the paramount consideration it was an important consideration. In the circumstances of the present case the welfare of all three children (the twins and the baby boy) had to be taken into account. The evidence indicated that disclosure would not be adverse to the baby boy's welfare but might be inimical to that of the twins. However, whilst the interests of the twins was an important factor, their mother had caused a serious injury to a young baby in her charge and it was important that no impediment be put in the way of a proper investigation of this grave matter by the police. Also, she was soon to have another child and the police, in the ordinary exercise of their duty to protect children, needed to play their full part in the formulation of any plans which needed to be made in relation to the forthcoming birth. In addition, she might again become involved in the care of young children other than her own. In all the circumstances disclosure would be ordered as sought by the police and local authority.
(3) In so far as the parents of the baby boy wished to vary the injunctions by being permitted to publish some of the matters prohibited by the injunctions, these were, in any event, matters of which the disclosure, without leave of the court, would constitute a contempt of court. When considering whether leave should be granted, a number of factors had to be weighed in the balance. These included the freedom of the press and free speech; the public interest in the confidentiality of proceedings relating to children and, coupled with that, the importance of encouraging a fearless performance of their duties together with candour and frankness by social workers and others concerned in the protection of children; and the welfare of the relevant children. Where, as in the present case, the proceedings were not to determine a question with respect to the upbringing of a child, the welfare of the child was not the paramount consideration, and a balancing exercise had to be performed. In the circumstances of the present case, the importance of the confidentiality of the care proceedings coupled with the welfare of the three children concerned outweighed the importance of the freedom of the press. Therefore, the applications to vary the injunctions were refused and leave was not given to publish any matter protected by s 12 of the Administration of Justice Act 1960.
Statutory provisions referred to:Administration of Justice Act 1960, s 12.
Children Act 1989, ss 41 and 98.
Family Proceedings Rules 1991, r 4.10(9).
Cases referred to in judgment:Cleveland County Council v F[1995] 3 FCR 174.
D (Minors) (Wardship: Disclosure), Re[1992] 1 FCR 297.
F (A Minor) and Others, Re [1989] FCR 249; sub nom Re F (Minors) (Wardship: Police Investigation) [1989] Fam 18; [1988] 3 WLR 818.
F (Otherwise A) (A Minor) (Publication of Information), Re [1977] Fam 58; [1976] 3 WLR 818; [1977] 1 All ER 114.
G (Care Proceedings: Disclosure), Re[1996] 3 FCR 77.
K (Minors) (Care Proceedings: Disclosure), Re[1994] 2 FCR 805; [1994] 3 All ER 230; sub nom Kent County Council v K [1994] 1 WLR 912.
L (Minors) (Document: Non-Party Disclosure), Re[1995] 2 FCR 12 (FD); [1996] 1 FCR 419 (CA); sub nom Re L (A Minor) (Police Investigation: Privilege)[1996] 2 FCR 145; [1996] 2 WLR 395 (HL).
M and N (Wards: Publicity), Re [1990] FCR 395; sub nom Re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211; [1989] 3 WLR 1136; [1990] 1 All ER 205.
M (A Minor) (Wardship Documents: Disclosure), Re[1993] 1 FCR 476; sub nom Re Manda [1993] Fam 183; [1993] 2 WLR 161; [1993] 1 All ER 733.
Oxfordshire County Council v P[1995] 2 FCR 212; [1995] Fam 161; [1995] 2 WLR 543; [1995] 2 All ER 225.
R v Central Independent Television plc[1995] 1 FCR 521; [1994] Fam 192; [1994] 3 WLR 20; [1994] 3 All ER 641.
R (MJ) (A Minor) (Publication of Transcript), Re [1975] Fam 89; [1975] 2 WLR 978; [1975] 2 All ER 749.
S (Minors) (Wardship: Police Investigation), Re [1987] Fam 199; [1987] 3 WLR 847; [1987] 3 All ER 1076.
W (Minors) (Continuation of Wardship), Re[1996] 1 FCR 393.
Z (A Minor) (Identification: Restrictions on Publication), Re[1996] 2 FCR 164; [1997] Fam 1; [1996] 2 WLR 88.
Frances Judd for the local authority.
Sara Granshaw for the police authority.
Ian Robertson, solicitor, for the parents of the baby boy.
Leo Curran for the guardian ad litem.
Jonathan Baker for the parents of the twins.
MR JUSTICE STUART-WHITE.I have before me two applications arising out of care proceedings heard last year.
The first is an application by a police authority for disclosure; the second is an application by two of the parties to the proceedings for variation of injunctions prohibiting publicity.
The care proceedings were unusual, consisting as they did of two sets of proceedings relating to the children of different families. They arose in this way. On 3 August 1994 a little boy JF, then aged 4 months, suffered severe convulsions at the home of the child-minder, Mrs L, to whose care he had been entrusted by his mother. The medical evidence established that he had suffered two shaking injuries on separate occasions, which had led to subdural...
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