Re D. (Minors) (Wardship: Disclosure)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE STOCKER,LORD JUSTICE SCOTT |
| Judgment Date | 14 November 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1114-1 |
| Docket Number | 91/1029 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 1991 |
[1991] EWCA Civ J1114-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BLACKBURN DISTRICT REGISTRY
(HIS HONOUR JUDGE LOCKETT)
Royal Courts of Justice
The President
(Sir Stephen Brown)
Lord Justice Stocker
Lord Justice Scott
91/1029
MR CHARLES BLOOM, Q.C., and MISS SARAH SINGLETON, instructed by Messrs Watsons (Lancashire), appeared for the Appellant (First Defendant).
MR DAVID HARRIS, Q.C., and MR STEPHEN DODDS, instructed by the Legal Department, Lancashire County Council, appeared for the First Respondent (Second Defendant).
MR EDWARD J. HOLMAN, Q.C., and MISS BARBARA J. WATSON, instructed by Messrs Fieldings (Blackburn), appeared for the Second Respondent (Plaintiff).
MISS ANNA M. WORRALL, instructed by the Legal Department, Blackburn, Hyndburn and Ribble Valley Health Authority, appeared for the Third Respondent (Respondent).
This is an appeal from a decision of His Honour Judge Lockett sitting as a deputy High Court judge made in wardship proceedings at Preston on 1st November of this year. The judge heard applications expressed to be made jointly by a father of three minors—the first defendant in a wardship suit, and by his father, the children's paternal grandfather—who was given leave to intervene for the purpose of this application.
The two applicants before the learned judge at Preston stand committed for trial on an indictment which charges them with a number of serious offences of indecency alleged to have been committed by them against the children who were and are wards of the High Court. The father faces some ten counts in the indictment and the grandfather three counts in the same indictment.
The application made to the learned judge was in three parts. Firstly the father sought leave to be able to use in the criminal proceedings certain wardship documents which had been before His Honour Judge Lockett when he heard wardship proceedings relating to the three children. The grandfather asked that the documents should be disclosed to him, and that he also should have leave to use the documents in the pending criminal proceedings. The relevant wardship documents had already been disclosed to the father, but he sought to have the leave of the wardship court to make use of them in the pending criminal proceedings. They comprised affidavits sworn by his former wife, the mother of the children, also those sworn by two other witnesses. He also sought similar leave in respect of the transcripts of the evidence given by two witnesses—the mother of the children and by the senior social worker involved -during the hearing before the learned judge which took place in October 1989.
The second category of documents which formed the subject of the application before the learned judge on 30th October related to the local authority. The local authority is the second defendant to the wardship suit, and the eldest of the three wards is in fact in its care. The order sought by the first defendant and the grandfather was expressed to be in the following terms:
"That the Second Defendants herein do disclose to the First Defendant and [the grandfather] all notes of interviews conducted by employees of their Social Services Department since the 1st August 1988 with the minors herein and the Plaintiff herein; [the plaintiff being the mother]."
Those documents are properly categorised as the social services' "case notes". They were not before the wardship court and were not referred to in the wardship proceedings. The application to the judge was in the nature of an application for "discovery".
A third category of documents in the application before the learned judge related to the Health Authority concerned in the relevant area. By that application an order was sought that the Health Authority should disclose to the first defendant (the father) and to the grandfather: "all notes and/or video recordings of any interview conducted by Social Workers employed by them with the minors herein and the Plaintiff since the 1st…August 1988", and also that the Health Authority should disclose the medical records of the minors to the first defendant and the grandfather and that the father and grandfather should have leave to disclose such documents to experts on their own behalf for the purpose of the criminal proceedings. That part of the application also amounted, in my judgment, to an application for "discovery" against the Health Authority.
The Health Authority had been made a respondent to the application to the learned judge. The learned judge expressed doubt as to whether he had jurisdiction to consider an application made against the Health Authority which was not a party to the wardship proceedings and which might well be thought to have had no locus in the wardship suit. However, the learned judge was faced with a situation where counsel instructed on behalf of the Health Authority made no objection to its being concerned in the application and being made a respondent to it. Indeed the Authority offered, if I may put it that way, a conciliatory and sympathetic attitude towards the application of the applicants. However, it is important to note the nature of the application made against the Health Authority. It was in the nature of an application for an order for discovery made against the Health Authority which was not a party to the wardship suit.
By way of background to this matter I should deal briefly with the relevant chronology. The mother, who is the plaintiff in the wardship suit, and the father, who is the first defendant in the wardship suit and one of those awaiting trial on a criminal indictment, were formerly man and wife and they had three children. The children, now the subject of the wardship, are boys now aged 16 and 14 and a half and a girl aged eight and a half years of age. They were divorced in 1986 and the decree was made absolute in 1987. In the divorce suit an order for joint custody was made and the mother given care and control of the children with access to the father.
It appears that in the summer of 1988 the mother made an application for the cessation of access in favour of the father, the first defendant. That was the matter which the learned judge eventually heard over a period of five days in October 1989 after the wardship summons had been issued.
The basis of the application was in part an allegation of sexual abuse against one of the children. The learned judge made no specific finding of sexual abuse, but he did terminate access. In relation to those proceedings the mother swore an affidavit in support of her application and she also swore a further affidavit which exhibited an affidavit sworn earlier in the divorce suit before the issue of the wardship summons. Those two affidavits form part of the subject of the application for disclosure and for leave to use in the criminal proceedings. The mother also gave oral evidence at that hearing, and the application before the learned judge sought the disclosure to the grandfather of a transcript of that evidence and also leave to the father to make use of it at the criminal trial.
In addition at the wardship hearing the senior social worker concerned in the supervision of the wards gave oral evidence and also exhibited, as an annexe to an affidavit, a full report which would have been based upon the experiences of a team of social workers. That affidavit and the oral evidence given by that social worker (who I will refer to as "Mr H") also forms part of the application for disclosure to the grandfather, who was not a party to the wardship but who gave evidence at that hearing. It is also made in relation to the father's wish to make such use of it as may be appropriate at the criminal trial.
So far as those matters are concerned, the father submits to this court that it is necessary for him to be able to make use of that material for cross-examination in the event of the mother—who will be a witness at the criminal trial—giving a version of events which may be inconsistent with her affidavits and her oral evidence.
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