Re D. (Infants)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE KARMINSKI |
| Judgment Date | 29 January 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0129-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 1970 |
[1970] EWCA Civ J0129-2
In The Supreme Court of Judicature
Court of Appeal
Appeal of Cheshire County Council from order of Mr. Justice Whitford dated January 27th, 1970.
The Master of The Rolls (Lord Denning),
Lord Justice Harman and
Lord Justice Karminski
Mr. PETER MILLETT (instructed by Messrs. H.P. and H. G. Rigby) appeared on behalf of the first plaintiffs.
Mr. A. J. BALCOMBE, Q. C., and Mr. R. G. WOOLLEY (instructed by Messrs. Gregory Rowcliffe & Co., agents for Mr. J.R. Boynton, Clerk of the Cheshire County Council) appeared on behalf of the second plaintiffs.
Mr. BRUCE CAMPBELL, Q. C., and Mr. GILBERT RODWAY (instructed by Messrs. Walker Smith and Way) appeared on behalf of the first defendant.
we need not trouble you, Mr. Balcombe.
This case concerns two children, a girl of 4½ and a boy of 3. Their parents are a married couple, both under 21. They have now separated. For the last two years or more the two children have been in the care of a County Council, who have boarded them out with foster parents. The children have been made wards of Court.
The mother now seeks to take the children from the foster parents and have them herself. The County Council think that they should stay with the foster parents. Mr. Justice Whitford is hearin, the case. The children's officers of the County Council have given evidence: and are available for cross-examination by Counsel for the mother. The children's officers can, of course, refresh their memorey from their notes made at the times and, if they do, they are liable to be cross-examined on those notes. But Counsel for the mother goes further, He wants to see all the case no 2. and reports which have been made by the children's officers, even though they do not use them to refresh memory. He wants to go through all their notes and reports, and see if he can find anything in them which would be useful to him in cross-examination of the children's officers, and also, I suppose, anything which would be useful to him in cross-examination of the foster parents. He wants, I expect, if it suits him, to put these notes and reports in evidence under the Evidence Acts.
The County Council object to producing these notes and reports. They say that it is of great importance that the children's officers should be completely free and frank in making these notes and reports: and that this freedom and frankness would be imperilled if they were liable to be disclosed.
I think the County Council are right. These case records are made by the children's officers in pursuance of the Boarding Out of Children Regulations, 1955. Regulation 10 says: "A local authority shall compile a case record in respect of every child boarded out by them. Every such case record has to bepreserved for at least three years after the child has attained 18 or died. It is specially provided that the case record shall be open to inspection by any person duly authorised in that behalf by the Secretary of State". That shows that the case record is regarded as private and confidential. If a person wants to see them, he has got to be duly authorised by the Secretary of State. Otherwise he cannot be allowed to see them.
In view of that Regulation, I think that these case records should be regarded as privileged just as are the records kept by a legal adviser. The children's officers should not be compelled to produce them, any more than legal advisers are compelled to produce their notes. The case of In re 'R' (1965 A. C. 201) is quite distinguishable. That concerned confidential reports made by the Official Solicitor. The House of Lords held that, if those confidential reports were shown to the Judge, it would usually be desirable that they should also be shown to the party affected by them. But it was in the discretion of the Judge in every case. That has no bearing here. It is not; the Judge who wants these case notes. It is Counsel for the mother. He wants them for his own purposes so as to use them for cross-examination of the witnesses. He would have no hope of obtaining them if the County Council were not a party: and he only demands to see them because the County Council happens to be a party. I do not think this should be permitted. I have never known discovery being ordered in a custody case, and I do not think we should start now.
During the argument, I put the case of a doctor who has made notes and is called as a witness. He cannot be compelled to produce his notes. He can, if he wishes, refresh his memory from his notes; and if he does so, of course, he can be cross-examined upon those notes; but unless he refreshes his memory by them, they are not admissible in evidence. The same should apply to the children's officers.
On principle I hold that these case notes and records should not be disclosed at the instance of another party to the suit.There may be exceptional circumstances in which the Court might overrule the privilege, but certainly not in this case. I think the Judge was in error. I would reverse his decision.
This is a very unusual application. For one thing, it is an application in the domestic jurisdiction of the Court, and I never heard in my experience of discovery of...
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Campbell v Tameside Metropolitan Borough Council
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D. (Married Woman) (Respondent) v National Society for the Prevention of Cruelty to Children (Appellants)
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Gaskin v Liverpool City Council
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