Re M (A Minor) (Disclosure of Material)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE LLOYD,LORD JUSTICE NICHOLLS |
| Judgment Date | 14 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1214-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/1220 |
| Date | 14 December 1989 |
[1989] EWCA Civ J1214-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SCARBOROUGH DISTRICT REGISTRY
MR JUSTICE WAITE
Royal Courts of Justice
Lord Justice Lloyd
Lord Justice Nicholls
Lord Justice Butler-Sloss
89/1220
MR D. MATHESON Q.C. and MR R. OUGH (instructed by Messrs Hetherton & Dempsey) appeared on behalf of the appellant (second defendant).
MRS M. FRICKER (instructed by Messrs Bedwell Watts & Co.) appeared on behalf of the first defendant supporting the appeal.
MR H. BENNETT Q.C. and MRS J. DAVIES (instructed by the Solicitor to the North Yorkshire County Council) appeared on behalf of the respondent (plaintiffs).
MR P. HUNT (Instructed by the Official Solicitor) appeared as guardian ad litem.
MRS J. BRIDGE represented Mr Ian Israel, Court Welfare Officer.
In this interlocutory appeal the appellant seeks to obtain access to social work records in a dispute over the future of his youngest daughter "S" aged 5. The local authority has made her a ward of court as a result of allegations made by her half-sister "A", aged 17, of sexual abuse by her father. These allegations are strenuously denied and in earlier criminal proceedings against the father he was acquitted by direction of the trial judge. Nonetheless, after the acquittal the social workers took steps to protect "S" on the basis of the sexual abuse by father of "A" and those allegations of sexual abuse arise in the wardship proceedings issued in respect of "S".
The father made a preliminary application to Waite J. on 6th October 1989 for the production by the plaintiff local authority of four groups of documents: Social Services case records, reports, notes and memoranda relating to the elder sister "A"; General Practitioner medical notes and records relating to "A"; psychiatric notes and records relating to "A"; and school reports and records relating to "A". There was no difficulty in production of school reports and records but production of the social work records and medical records present issues of some difficulty. The judge refused to order the production of the social work records on the ground of immunity in the public interest. He directed that "A" be made a ward of court for the limited purpose of deciding whether consent should be given to the production of her medical records. The issue as to the medical records has yet to be resolved. An appeal was lodged against a preliminary order of Cazalet J. but has not beer pursued.
The issue before this court is the refusal of Waite J. to order discovery of the social work records. Some background facts are necessary to understand their relevance.
The father of "A" and "S" has been married twice. By his first marriage he had three children of whom "A" was the youngest. After separation and divorce from "A's" mother he married "S's" mother in 1983 and "S" was born on 20th April 1984. "A" and her elder sister "P" lived with their father and stepmother. There were difficulties between "P" and her stepmother and within a year she moved out. At that time the relationship between "A" and her father and stepmother was good, but it deteriorated and serious antagonism developed between "A" and her stepmother. This came to a head in June 1987. "A" went missing overnight and on her return there was a serious family quarrel in which "A" sustained an injury to her hand. She left home and on 14th June 1987 put herself into voluntary care of the local authority under section 2 Child Care Act, 1980. Social workers placed her in a children's home. At that time there was no suggestion of sexual abuse. On 12th July "A" made allegations to another girl in the children's home and then to a residential care officer of serious sexual abuse by her father. On 31st July she made the first of two long statements to a police officer alleging rape and incest by her father. The father was arrested and released on bail. He went to live away from home with his brother while "S" was cared for by her mother. "P" then made allegations of sexual abuse and the father was committed for trial on charges including rape and incest. At the trial in March 1989 "A" gave evidence for two days and after her evidence the judge directed the jury to acquit. This court has not seen the transcript of the criminal proceedings but we are told that her evidence was discredited. The father returned home to his wife and "S". A social worker called to see them the next day and indicated that if the father did not move out an application for a place of safety order in respect of "S" would be made by the local authority and the father therefore returned to live with his brother. On 14th March 1989 "S" was made a ward of court.
After her reception into care and the making of the allegations of sexual abuse "A's" behaviour has caused considerable concern culminating in a period as an in-patient in an adolescent psychiatric unit. She is now 17 and is living independently. However, during her period in local authority care, records were kept by the Social Services Department of the local authority in accordance with Boarding Out Regulations and there were also case conference notes and other documents relating to her in the files. The reason for the issue of wardship proceedings and the local authority's concern for the future welfare of "S" is based entirely upon the allegations of her sister "A". In those circumstances the father seeks general discovery of all the social work records kept on "A". Three issues arise:
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(i) whether discovery should be given in wardship proceedings
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(ii) whether social work records are covered by public interes immunity;
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(iii) should these records or any of them be disclosed to the father?
(i) Discovery
Order 24 Rule 3 provides for a party to an originating summons to apply for discovery. In the first reported case in which social work records appear to have been considered by any court, Re D [1970] 1 W.L.R. 599, Harman L.J. said that it was quite contrary to practice to give discovery in a wardship case. Karminski L.J. said he had no recollection of any such order ever having been made. I, too, have never heard of a formal order for discovery in a wardship case. General discover by way of lists is, in my judgment, entirely inappropriate, but there would seem to me to be no reason why applications for disclosure of specific documents should not be made where considered suitable in wardship applications and I have no reason to believe that it does not happen. Proceedings in wardship are parental and administrative, inquisitorial rather than adversarial and the judge may at any time permit or, indeed, of his own volition require the production of documents he may consider relevant.
(ii) Social work records
Social work records compiled and kept by a local authority pursuant to their statutory obligations were first considered by this court in Re D (supra). Lord Denning said at page 601:
"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."
The court based their decision to exclude the documents on two bases other than the question of general discovery, to which I have already referred. The first basis was formulated by Lord Denning, M.R., under the Boarding Out of Children Regulations 1955, Regulation 10, whereby the case records shall be open to inspection by any person duly authorised in that behalf by the Secretary of State. The learned Master of the Rolls took the view that the case records, in view of that Regulation, should be regarded as privileged and drew an analogy with the legal professional privilege. With greatest respect to the learned Master of the Rolls, I find it difficult to justify non-disclosure on that ground. The very fact that the records are open to inspection by a person authorised by the Secretary of State shows that the right to withhold disclosure has little to do with legal professional privilege. Nor can it be justified on the construction of Regulation 10. That regulation is not concerned, whether expressly or by implication, with disclosure in the course of legal proceedings.
The other basis was the issue of "candour", that is to say, the opportunity for the child care officers to be completely free and frank in making these notes and reports, and as the Master of the Rolls said:
"This freedom and frankness would be imperilled if they were liable to be disclosed."
Harman L.J. said at page 601:
"It is contrary to public policy because these records must not be kept by people looking over their shoulders in case they should be attacked for some opinion which they may feel it is their duty to express. It seems to me it would be a very bad precedent, whether the County Council be a party or not, that documents of this kind should be uncovered and looked through to see whether in the past some opinion has been expressed which is said to be inconsistent with the present attitude."
Karminski L.J. said at page 601:
"Even if such an order (discovery) could be made, it should rarely if ever be made, for the reasons given by Harman L.J., against a public authority having a statutory duty to keep records. Otherwise such an authority might find it difficult to do its duty fully and properly without some degree of apprehension lest on some occasion in the future reports made in such a case as this confidentially, might come under public scrutiny in a court of law."
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