Re G (A Minor) (Care Proceedings: Disclosure)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS AND AULD, L JJ AND SIR ROGER PARKER
Evidence – investigation by local authority following institution of care proceedings – disclosure by social worker to police of admissions made by parents regarding non-accidental injury to child – whether leave required pursuant to r 4.23 of the Family Proceedings Rules 1991 – whether leave required only in respect of documents already filed with the court.
A local authority obtained an interim care order on 2 February 1995 in respect of a baby born a week earlier. The proceedings were brought following earlier proceedings in respect of a child of the same parents who had suffered serious injuries in 1992 which had appeared to be non-accidental. A criminal prosecution against the child's father had not been proceeded with by the prosecution and the child had ultimately been placed with paternal grandparents. The local authority and the guardian ad litem remained concerned about the risk of returning the baby to the parents and the local authority were concerned as to the effective assessment of the parents as future carers. The parents indicated a willingness to discuss the circumstances which had led to the injuries to the older child. However, they were anxious not to expose themselves to the risk of criminal proceedings if they made damaging admissions.
Rule 4.23 of the Family Proceedings Rules 1991 provides:
"... no document ... held by the court and relating to proceedings [under the Children Act 1989] shall be disclosed other than to –
(a) a party;
(b) the legal representative of a party;
(c) the guardian ad litem;
(d) the Legal Aid Board; or
(e) a welfare officer,
without leave of the Judge or district judge."
The local authority, supported by the police who had been given leave to intervene, applied to a Judge for a ruling that the authority might notify the police of any information obtained from the parents about the injuries to the older child. The parents and the guardian ad litem argued that the local authority were precluded from giving that information to
the police without the leave of the court in accordance with r 4.23 of the 1991 Rules. The Judge ruled that any oral or written statement that might be made by a parent to a social worker for use in care proceedings fell within the terms of r 4.23 and, therefore, the local authority would not be entitled to relay to the police any information received from the parents about the older child's injuries without the leave of the court.
The local authority, supported by the police, appealed.
Held – allowing the appeal (Auld, LJ dissenting): The effect of r 4.23 of the Family Proceedings Rules 1991 was to preclude the disclosure of documents, held by the court and relating to family proceedings, to anyone other than those named in the rule without the leave of the court. Consequently, an oral statement made by a parent to a social worker and which the social worker recorded in writing and placed in the social work file would not come within the ambit of the rule as it was not a document held by the court and the leave of the court was not required for disclosure. However, if the statement was recorded by the social worker and filed with the court it would fall within the terms of the rule and the leave of the court would be required before disclosure could be made.
Decisions of Ward, J in Oxfordshire County Council v P[1995] 2 FCR 212 and Hale, J in Cleveland County Council v F[1995] 3 FCR 174 to the effect that r 4.34 extended to oral statements made by a parent to a social worker overruled.
Per Butler-Sloss, LJ and Sir Roger Parker: (1) A written statement by a parent, made for the purpose of care proceedings, and handed to a social worker, the guardian ad litem, or to the court direct, might be covered by r 4.23 and the leave of the court required before disclosure could be made. The position would be much more easily ascertainable if r 4.23 was regarded as being limited to documents actually filed with the court.
(2) The position of a social worker should not be equated with that of the guardian ad litem. It might be that disclosure of all documents emanating from or information given to the guardian ad litem would be subject to the leave of the court. But, in the absence of argument, no view could be expressed as to the scope of the guardian ad litem's duty to the court and whether it excluded the duty to inform the police of admissions of criminal offences without the leave of the court.
(3) The consequences of an admission and whether it might attract immunity under s 98 of the Children Act 1989 would depend upon the circumstances and whether it fell within the scope of the section. It was doubtful whether s 98(2) of the 1989 Act extended to admissions made in advance of care proceedings to a social worker as was held in Oxfordshire County Council v P[1995] 2 FCR 212 and in Cleveland County Council v F[1995] 3 FCR 174.
Statutory provisions referred to:Administration of Justice Act 1960, s 12.
Children Act 1989, ss 41, 42, 46, 48 and 98.
Family Proceedings Rules 1991, r 4.23.
Guardians ad Litem and Reporting Officers (Panels) Regulations 1991.
Police and Criminal Evidence Act 1984, ss 76 and 78.
Cases referred to in judgment:Cleveland County Council v F[1995] 3 FCR 174; [1995] 1 WLR 785; [1995] 2 All ER 236.
D (Minors) (Wardship: Disclosure), Re[1992] 1 FCR 297.
D v NSPCC [1978] AC 171; [1976] 3 WLR 124; [1976] 2 All ER 993.
F (A Minor) and Others, Re [1989] FCR 249; [1989] Fam 18; [1988] 3 WLR 818.
F (orse A), Re [1977] Fam 58; [1976] 3 WLR 307; [1976] 3 All ER 274.
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.
Oxfordshire County Council v M[1994] 1 FCR 753; [1994] Fam 151; [1994] 2 WLR 393; [1994] 2 All ER 269.
Oxfordshire County Council v P[1995] 2 FCR 212; [1995] Fam 161; [1995] 2 WLR 543; [1995] 2 All ER 225.
R v Hampshire County Council, ex parte K [1990] FCR 545; [1990] 2 QB 71; [1990] 2 WLR 649; [1990] 2 All ER 129.
S (Minors) Re [1987] Fam 199; [1987] 3 WLR 847; [1987] 3 All ER 1076.
Margaret de Haas for the local authority.
Alex Stansby for the parents.
Paula Fallows for the guardian ad litem.
Robin Spencer for the police.
LADY JUSTICE BUTLER-SLOSS.The issues which arise in this appeal stem from the tension between the criminal and civil jurisdictions in cases of child abuse.
On 31 December 1992, a baby, M, aged 6 months, was taken by his mother to hospital and was found to have a number of serious injuries which appeared to be non-accidental. The parents gave unsatisfactory accounts of the injuries and blamed each other. They were arrested and the father committed for trial. At the trial the prosecution offered no evidence and the Judge directed that the indictment remain on the file. The local authority instituted care proceedings and the child is now living with the paternal grandparents.
On 26 January 1995 J was born to the same parents and, in view of the injuries to M, the local authority obtained an interim care order on 2 February 1995. The main hearing as to J's future is to be in November 1995. In an interim report the guardian ad litem of J has pointed to the risk of returning J to his parents without much fuller information about M's injuries. Any effective assessment of the parents as future carers by social workers is impeded by the lack of information and the inability to evaluate the degree of risk to J of such a return.
The parents have indicated a willingness to discuss in fuller detail, and presumably with more candour, the circumstances of those injuries. They are however anxious not to expose themselves to criminal proceedings if they made damaging admissions. The issue came before His Honour Judge Elystan Morgan at Warrington county court on 22 May 1995 whether the local authority would be entitled, without leave of the court, to disclose to the Cheshire police any information obtained from the parents about the injuries to M. The local authority, supported by the police who were given leave to intervene, sought a ruling that they might give that information to the police. The parents and the guardian ad litem argued that the local authority were precluded from giving that information without leave of the court in accordance with the provisions of r 4.23 of the Family Proceedings Rules 1991. The Judge ruled that the local authority would not be entitled to relay any information received from the parents about M's injuries to the police. The local authority, supported by the police, appealed against that ruling
to this court. Since there was some urgency for a decision to be made in view of the pending care proceedings, we allowed the appeal, set aside the Judge's declaration and substituted a declaration that the social worker is at liberty to inform the police of any statements or admissions made to him by the parents without leave of the court. We now give our reasons for that decision.
Before considering the decisions which touch on this issue, it is useful, in my view, to look at the context in which the police are involved in these cases of injury to and abuse of children. They have, it seems to me, two functions in particular, the investigation of crime and the protection of children which include statutory responsibilities, such as by s 46 of the Children Act 1989 (Removal and accommodation of children by the police in cases of emergency). In their increasingly important role of child protection they fully participate all over the country in inter-disciplinary arrangements recommended in the booklet published in 1991 jointly by the Home Office, the Department of Health, the Department of Education and Science and the Welsh Office, entitled Working Together (under the Children Act 1989). In the introduction at para 1.9 it deals with area child protection committees:
"The protection of children requires a close working relationship between social services...
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