Re N (Family Proceedings: Disclosure)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 08 July 2009 |
| Neutral Citation | [2009] EWHC 1663 (Fam) |
| Date | 08 July 2009 |
| Court | Family Division |
| Docket Number | Case No: FD03P02333 |
[2009] EWHC 1663 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Before: Mr Justice Munby
In the Matter of N (a Child)
Case No: FD03P02333
Dr Michael Pelling for the Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Mr David Holden for the First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)
Ms Shelagh Farror (instructed by Goodman Ray) for the Second Respondent (child)
No hearing: matter decided on written submissions in accordance with order dated 6 May 2009
(Submissions filed between 19 May 2009 and 5 June 2009)
This judgment was handed down in private but the judge hereby gives leave for it to be published
Mr Justice Munby:
This is an application in respect of the proposed disclosure to the General Medical Council (GMC) of an expert report produced in the course of and for the purposes of proceedings in relation to a child.
It is, so far as I am aware, the first time a court has had to consider rule 11.4(1)(c) in the newly inserted Part XI of the Family Proceedings Rules 1991, SI 1991/1247. And it vividly illustrates just how profound are some of the changes brought about by Part XI.
The background
These are private law proceedings relating to N, who was born on 22 March 2001. His parents never married and separated in August or September 2002, but the father, A, has parental responsibility pursuant to a parental responsibility agreement dated 25 November 2002.
The proceedings began on 17 October 2003, when N was only 2 1/2 years old, and have continued ever since with unabated vigour. The President of the Family Division recently described the attitude of the parents until July 2008 as “acrimonious, confrontational and emotionally fraught in relation to N's residence and parental contact”: see A v G [2009] EWHC 736 (Fam) at para [1]. I see no reason to differ from that assessment, which accords entirely with my own impressions of this unhappy litigation.
On 17 November 2003 the father issued an application for residence and interim contact. After a long and tangled procedural history which there is no need for me to record here (it is recorded in other judgments), the proceedings eventually came on for a final hearing before me on 21 July 2008. After many days of strenuous discussion between the parties, a consent order which I approved was made on 29 July 2008.
Amongst the voluminous materials put before me were reports on the mother and the father, each dated 4 April 2008, by Dr CM, a consultant psychiatrist. The father had produced a 17 page statement dated 12 April 2008 criticising Dr CM's reports as “seriously flawed”. He had also prepared – seemingly with professional medical assistance – a 94 page “Critique” of Dr CM's psychiatric assessment of the mother which questioned the “professionalism” of Dr CM's work.
In his statement of 12 April 2008 the father summarised his complaints against Dr CM under three headings. He asserts that: (1) Dr CM had insufficient information on the mother to ascertain if she was suffering from a mental illness / personality disorder – Dr CM, he said, had “tolerated her refusing to answer questions”; (2) Dr CM was biased towards the mother; and (3) Dr CM had disregarded concrete evidence, thus giving a misleading view of the mother – Dr CM, he said, had ignored evidence that had been made available to him (four alleged examples were given). Amongst his more specific complaints was that in interviewing the mother Dr CM “did not bother to apply” what the father asserts is a “well-known Diagnostic Interview for Borderlines.”
The application
As had been foreshadowed during the hearing in July 2008, on 2 October 2008 the father sent the court a request for leave to disclose certain documents to the appropriate professional body for the purpose of making a complaint about Dr CM.
I have already set out the basis of the father's criticisms of Dr CM's reports. In his request dated 2 October 2008 he summarised the grounds of his application for leave to disclose what he said are the relevant documents to Dr CM's professional body as follows:
i) In the first place, he said, a prima facie case had already been made out, in his statement of 12 April 2008 and in the detailed 'critique', that there are serious grounds for complaint to Dr CM's professional body. Part of the meaning of “professional”, he said, is that members of the profession are subject to regulation in their conduct and competence – which would have little value if members of the public could not make complaints to the relevant regulatory body. It is, he asserted, plainly in the public interest that complaints should be possible and be duly processed, so the court should therefore normally facilitate the complaints process; the burden, he suggested, is upon the court or the other parties to say why any necessary leave to disclose should not be granted.
ii) Secondly, he said, he wished to complain about Dr CM's competence in relation to both the report on himself and the report on the mother. In relation to himself he has of course, as he pointed out, a personal interest. In relation to the mother, and also himself, he has an interest as a party in competent expert evidence being provided to the court, for such evidence affects or potentially affects the outcome of the case, and hence the interests of the child and of himself qua father. Putting the matter at its highest, he believed that if Dr CM had carried out his remit in relation to the mother competently and professionally then he should have found that she had Borderline Personality Disorder, which would have considerably strengthened his case for sole residence of N, a case which, he said, he might not otherwise have abandoned.
iii) Furthermore, he said, he has a lesser interest in the report on the mother being prepared properly, because he consented to pay ? of the fees for it. There is, as he pointed out, an implied term in the contract that the work will be done in a proper professional manner and he objected to paying Dr CM's fees until such time as there had been a ruling on the complaint he wished to make (and the same applies of course, as he said, to the report on himself).
I have and express no views of any kind as to the merits or demerits of the father's complaints, as to whether or not there is any substance in the father's complaints, about Dr CM. Because the matter was eventually compromised, Dr CM never gave evidence before me and was, therefore, never cross-examined. For all I know there may be substance in the father's complaints; for all I know they may be utterly groundless.
I need not list the voluminous documents that the father says should be disclosed to the GMC. In essence he says that, in order to give informed consideration to and make an informed adjudication upon his intended complaint about Dr CM's methodology, the GMC will need to see the reports themselves, together with Dr CM's letter of instruction and the material Dr CM was provided with pursuant to the court's order, and any supplementary material he was also provided with. The GMC should also, the father says, have his statement of 12 April 2008, one of the (lengthy) exhibits to a statement he had made on 7 July 2008, and his detailed 'critique' of Dr CM's methodology, as these documents set out why he considers the methodology to have been seriously flawed and Dr CM's work, as he puts it, unprofessional and incompetent.
When this issue was first ventilated by the father, disclosure of documents generated in the course of children proceedings was regulated by section 12 of the Administration of Justice Act 1960 and rule 10.20A of the Family Proceedings Rules 1991. So it was in that context that the father sought leave to disclose the documents to the GMC.
In accordance with directions I had given on 20 January 2009 and on 21 April 2009, the hearing of the father's application came on for hearing before me (together with numerous other applications which will be the subject of a separate judgment) on 5 May 2009.
In his position statement dated 24 April 2009 the father helpfully drew attention to the fact that, with effect from 27 April 2009, the new Part XI of the Family Proceedings Rules 1991 would be in force, replacing rule 10.20A. He pointed out that it appeared from rule 11.4(1)(c) that the leave of the court would no longer be required to disclose documents for complaint purposes. However, he made clear that he was leaving his application on the record “as this has been a contentious matter, and some parties may wish the court to restrict disclosure.”
Since it seemed to me that rule 11.4(1)(c) might potentially raise issues of significant impact in a wide variety of cases, and since the parties had understandably had little opportunity to consider its meaning and effect (for the new rule was not made public until 6 April 2009), I decided that I could not properly deal with the issue during the hearing on 5 May 2009.
Accordingly, and with the agreement of all parties, I made an order on 6 May 2009 adjourning the father's application for disclosure on the basis that the parties would file written submissions sequentially (the guardian by 20 May 2009, the mother by 27 May 2009 and the father within seven days thereafter) and, the parties having consented to my proceeding in this way, that I would decide the issue on the basis of the written submissions of the parties and without the necessity of an oral hearing. Helpfully and appropriately the father undertook pending judgment on the issue of...
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