Re L (Minors) (Disclosure of Medical Report)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, SWINTON THOMAS AND MORRITT, L JJ
Evidence – disclosure – care proceedings – leave granted to mother to obtain medical report in care proceedings – direction that report be filed and (therefore) disclosed to other parties – report filed and disclosed – application by police authority for joinder and disclosure of report – whether court should give leave for disclosure of report to police authority for use in investigation of criminal offences.
Evidence – disclosure – whether leave should be granted to police authority for disclosure of medical report filed by party – principles to be considered.
Evidence – disclosure – whether contents of medical report protected by legal professional privilege – whether privilege against self-incrimination breached by disclosure of report.
The case concerned two children, a girl and a boy born on 1 May 1990 and 11 December 1991 respectively. The parents of the children were registered as drug addicts. On 16 January 1993, the older child was admitted to hospital having consumed a quantity of methadone. The mother claimed that this was an accident. On 22 January 1993, emergency protection orders were made in respect of both children with interim care orders following on 29 January 1993. On 6 May 1993, leave was granted in a county court for the parents to disclose the papers in the case to a medical expert, to consider the frequency of consumption of methadone by the older child. The expert was directed to file a report with the court (and thus with the parties) by 27 May 1993. A report, dated 10 August 1993, was duly filed. The consultant pathologist who wrote the report found, inter alia, that the mother's account of events leading to the ingestion by her daughter of the methadone was not at all probable, in the light of the hospital's clinical findings.
On 4 October 1993, application was made by the police authority for leave to be joined as a party to the proceedings and to seek a direction from the court that copies of the medical report be provided for the purpose of investigating criminal offences. These applications were transferred to the High Court. The applications came before the High Court on 1 July 1994. In determining the application made by the police authority, the Judge ruled that the High Court had jurisdiction to disclose to the police authority documents filed in the Children Act proceedings. The court could order the joinder of the police authority for the purposes of disclosure, although this was not necessary. The Judge also ruled that, in assessing the balance in this case between the confidentiality of the care
proceedings and the public interest of disclosure of the report in the interests of justice, the balance came down in favour of disclosure. The mother appealed against the decision to permit disclosure of the report to the police authority.
Held – dismissing the appeal: (1) When leave had been granted on 6 May 1993, no objection was raised by the mother to the additional direction relating to the disclosure of the report. Further, no application had been made to vary the direction, and it had subsequently been complied with, and was not the subject of any appeal. A similar direction had received judicial approval in Oxfordshire County Council v M[1994] 1 FCR 753. This decision appeared to be clear and binding authority for the proposition that, even if a report obtained in circumstances as existed in this case were covered by legal professional privilege, the court might nevertheless override that privilege if it considered it right to do so in the interests of the child. The court clearly took the view that proceedings under Part IV of the 1989 Act were akin to proceedings in wardship, and it must be assumed that the court was familiar with the operation of the Act and the hierarchy of courts at which proceedings could be entertained. It was plainly wrong to suggest that the decisions in H v H; K v K (Child Cases: Evidence) [1989] FCR 356 and Re W (Minors) (Wardship: Evidence) [1990] FCR 286 were authority for the proposition that the jurisdiction of the court under the Children Act 1989, being statutory, was subject to the ordinary rules on hearsay, and thus, by analogy, to the rules on legal professional privilege. The ratio of the decision in the Oxfordshire case was that the paramountcy principle, combined with the special role of the court in care proceedings under the Act, empowered the court to act as it had done in wardship free of at least some of the constraints to which it was subject in adversarial civil proceedings.
(2) The mother had not been obliged to obtain an expert's report, nor had she been obliged to accept the grant of leave to obtain it on the terms offered by the court. She could have appealed against those terms. When she became aware of the contents of the report, she could have returned to the court to ask to be relieved of the duty to file it. She did file the report and did not claim any privilege in relation to its contents. Although the disclosure of the report to the police authority might incriminate the mother, she was not incriminating herself, as the court was only ordering the disclosure of a document filed by the mother without objection.
(3) On the question of the exercise of the discretion to disclose the report, the relevant authorities showed that there were very many potentially relevant factors, depending upon the facts of the case. The consideration of the welfare of the child would be a major factor and if disclosure would promote the welfare of the child, it would readily be ordered. If disclosure would prejudice the welfare of the child, it might still be ordered if there were potent arguments for disclosure, but the court would be much more reluctant to make the order. The public interest in the fair administration of justice, and the right of a criminal defendant to defend himself were accepted as potent reasons for disclosure. If disclosure would be unfair or oppressive to a party to the proceedings, that would weigh against an order for disclosure. The application by the police authority for disclosure was supported by the guardian ad litem and the decision reached by the Judge was a reasonable one, and there were no grounds for disturbing it.
Per curiam: Although both parties accepted that a report obtained in the circumstances which pertained here was covered by legal professional privilege, it was not certain whether this assumption was rightly made. It was hard to see how a privilege so based could be said to cover a report prepared pursuant to an order requiring the report to be filed with the court, and which, by the operation of the relevant Rules, would therefore be made available to all parties to the proceedings. It should have been appreciated, both by the
mother and the consultant, that the report could never therefore be confidential.
Decision of Bracewell, J [1995] 2 FCR 12 affirmed.
Statutory provisions referred to:Children Act 1989, ss 48, 50 and 98.
Children and Young Persons Act 1933, s 39.
Civil Evidence Act 1968, s 14.
Family Law Reform Act 1969, s 7(2).
Family Proceedings Rules 1991, rr 4.23, 4.7 and 10.20.
Guardianship of Minors Act 1971.
Matrimonial Causes Act 1973.
Cases referred to in judgment:A (Wardship: Disclosure), Re [1991] FCR 844.
Blunt v Park Lane Hotel Limited [1942] 2 KB 253.
B (Minors) (Disclosure of Medical Reports), Re[1993] 2 FCR 241.
Brown v Matthews [1990] FCR 581.
D (Minors) (Wardship: Disclosure), Re[1992] 1 FCR 297.
F (Minors) (Wardship: Police Investigation), Re [1989] Fam 18.
H v H; K v K (Child Cases: Evidence) [1989] FCR 356.
K (Minors) (Care Proceedings: Disclosure), Re[1994] 2 FCR 805.
M (A Minor) (Wardship Documents: Disclosure), Re[1993] 1 FCR 476.
Oxfordshire County Council v M[1994] 1 FCR 753; [1994] Fam 151.
Practice Note (Infants: Transcript) [1972] 1 WLR 443.
R (A Minor) (Legal Professional Privilege) (Disclosure of Material), Re[1994] 1 FCR 225.
R (MJ) (A Minor) (Publication of Transcript), Re [1975] Fam 89.
S (Minors) (Wardship: Police Investigation), Re [1987] Fam 199.
Ventouris v Mountain [1991] 1 WLR 607.
W (Minors) (Wardship: Evidence), Re [1990] FCR 286.
Lindsey Kushner, QC and Lesley Newton for the appellant.
David Harris, QC and Yvonne Coppel for the police authority.
SIR THOMAS BINGHAM, MR.This appeal is against an order made by Bracewell, J in Manchester on 1 July 1994. [See now [1995] 2 FCR 12.] She then ordered that an expert's report obtained by a mother in the course and for the purpose of care proceedings be disclosed to the Greater Manchester Police Authority ("the police authority"). The mother challenges that order. The police authority seeks to uphold it. Other parties to the proceedings (the local authority and the guardian ad litem) have not appeared or taken part in the appeal but have made plain that they support the argument of the police authority. The father does not appear but supports the mother's argument.
The second respondent in the care proceedings ("the father") was born in October 1967, the first respondent ("the mother") in March 1970. In 1988, when they were
respectively aged about 20 and 18, they started living together. They were both heroin addicts. Two children were born of this association: E (a girl) on 1 May 1990 and C (a boy) on 11 December 1991.
On 16 January 1993 E was admitted to hospital having consumed a quantity of methadone. The mother's explanation was that the child had accidentally drunk the methadone from a beaker left carelessly in the kitchen. E was very soon discharged home to her parents' care but on 22 January 1993, Manchester City magistrates' court made emergency protection orders in relation to both children and they were placed with foster-parents. Interim care orders were granted on 29 January 1993, and thereafter renewed until 27 July 1994.
On 10 February 1993 the mother and the father were both sentenced to imprisonment for offences unrelated...
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