Re v (Sexual Abuse: Disclosure); Re L (Sexual Abuse: Disclosure)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE HUTCHISON,LORD JUSTICE CHADWICK |
| Judgment Date | 08 October 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1008-6 |
| Docket Number | FC3 98/5215/2 FAFMI 97/1694/2 CCFMI 97/1352/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 1998 |
[1998] EWCA Civ J1008-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE BENNETT) Re L & W (Minors)
AND
ON APPEAL FROM THE BOURNEMOUTH COUNTY COURT
(HER HONOUR JUDGE BONVIN) Re V (Minors)
Royal Courts of Justice
Strand, London WC2
Lady Justice Butler-Sloss
Lord Justice Hutchison
Lord Justice Chadwick
FC3 98/5215/2
FC3 97/7112/2
FAFMI 97/1694/2
CCFMI 97/1352/2
MR ALLAN LEVY QC & MR A CALLAWAY (Instructed by Hill Lawson, Surrey, KT17 1RX) appeared on behalf of the Appellant in L & W (Minors)
MISS JUDITH PARKER QC & MISS CHARLOTTE FRIEDMAN (Instructed by Mrs Frampton, Hampton Legal Practice, Bournemouth) appeared on behalf of the Appellants in V (Minors)
MR D BEDDINGFIELD (Instructed by Croydon Borough Council) appeared on behalf of the Respondent in L & W (Minors)
R BELBEN & (MISS N BARNETT—re 8 October 1998) (Instructed by Bournemouth Borough Council) appeared on behalf of the Respondent in V (Minors)
We have heard together two unrelated appeals which raise similar issues about disclosure of information by the Court to those unconnected with the family proceedings in which the information became available. In each case a local authority sought leave to provide information, in one case to another local authority and in the other to the area Youth Football League, (the League), about findings of sexual impropriety made by the judge against the appellant in proceedings under section 31 of the Children Act 1989, (the Children Act).
The background facts.
The L case.
In this appeal, the father, Mr L, is 36 and has 5 children and one step-child. In 1995 he was charged with attempted rape of the step-daughter and indecent assault upon the other 5 children. In August 1996 he was acquitted of all charges. In care proceedings in respect of one child, on the 4th July 1997 Bennett J found that the father had sexually abused three children in his care, two of his children and the step-daughter. The judge held that the threshold criteria under section 31 were met and that Mr L posed a significant risk to the three youngest children. During the hearing Mr L was given leave by the judge to write down his address. He had moved away from the London area to an
undisclosed address. At the conclusion of the judgment the local authority asked the judge to give leave for the address to be disclosed to them in order that they might alert the local authority of the area to which Mr L has moved of his presence and the danger he might pose to children in the new area. The judge had found that he posed a considerable threat to the children of single female adults with whom he might cohabit but not to children generally. In a second judgment of the 31st July 1997 the judge directed that the address of Mr L and the substance of the findings of sexual abuse be disclosed to the local authority in whose area Mr L then lived but not to the police or to any other local authority without the leave of the court. His judgment is reported in Re L (Minors)(sexual abuse:disclosure) [1998] 1 FCR 258. Mr L appealed to this Court against the granting of leave to disclose his address to the local authority.
The V case.
In this appeal, the parents of four sons separated in 1987 and divorced in 1996. The children stayed with their mother. The two elder boys are now over 18 but D is 15 and C is 14. In 1994 the mother formed an association with a Mr W. He was a keen footballer and coached junior football teams at the local club where both D and C played. Allegations were made about Mr W's inappropriate behaviour with young boys including C. The father of D and C became concerned and the local authority became involved and instituted proceedings under section 31 of the Children Act. At the end of a 17 day hearing before Her Honour Judge Bonvin, on the 2nd September 1997, the judge made findings of sexual impropriety, principally an indecent assault in 1989 on an 8 year old boy, characterised by the judge as 'relatively minor', and more recently 'overwhelming evidence of an unusual and unhealthy relationship with C'. The judge held that Mr W posed a risk of significant harm both to D and C unless some protective measures were kept in place. Those measures included a prohibited steps order and retaining the boys' names on the Child Protection Register.
The judge was then asked by the local authority to give permission for a letter to be sent to the local football club and to the League which, it appears, regulates the clubs affiliated to it. The League had two years before informed the local club that Mr W was not acceptable as manager of the team in which C played. The judge was not however given any further information save that the local club circumvented that instruction and Mr W continued to be involved in the junior teams. The judge in a second judgment on the 23rd September 1997 approved a letter to be sent to the League informing them of her decision and a short summary of the behaviour found proved. Mr W appealed to this court against the order to send the letter to the League.
It has been the practice for many years for information obtained in wardship and other family proceedings to be treated as confidential and not to be disclosed outside the proceedings without leave of the court. The Administration of Justice Act 1960, section 12(1), provides that proceedings relating to the inherent jurisdiction of the High Court with respect to minors, brought under the Children Act or otherwise relating wholly or mainly to the maintenance or upbringing of a minor are protected from publication of information. The Children Act, Section 98(2), protects witnesses giving evidence in court from self-incrimination in the interests of frankness. The Family Proceedings Rules 1991, (the Rules), provide for confidentiality of documents in the proceedings which may not be disclosed other than to the parties and other specified persons without the leave of the judge or district judge, see rule 4.23. Transcripts of proceedings and judgments are protected by rule 10.15. The address of a party or witness who seeks not to disclose it other than to the court is specifically protected by rule 10.21.
The question as to when documents protected by the Rules may be disclosed has been considered by this Court on a number of occasions in recent years, principally in connection with requests from the police in order to help their investigations.
Sir Stephen Brown P in re D (Minors) (Wardship Disclosure) [1994] 1 FLR 346 said at page 350:—
"The principle is quite clear, and that is that the judge hearing an application for leave to disclose such documents must in the exercise of his discretion conduct a balancing exercise—that is to say, he has to balance the importance of confidentiality in wardship proceedings and the frankness which it engenders in those who give evidence to the wardship court against the public interest in seeing the ends of justice are properly served. In relation to criminal proceedings it is clear that the wardship court should not, as it were, seek to erect a barrier which would prejudice the operation of another branch of the judicature."
In re L (Police Investigation: Privilege) [1995] 1 FLR 999, Sir Thomas Bingham MR said at page 1019:—
"The authorities show that many factors are potentially relevant, depending on the facts, to the exercise of discretion."
The Master of the Rolls considered the effect of disclosure upon the child the subject of the proceedings and said that, if disclosure would not adversely affect his welfare, other considerations were likely to carry the day. He accepted as potent reasons for disclosure, even if adverse to the child's welfare, the public interest in the administration of justice and the right of a defendant to defend himself in criminal proceedings. He concluded:—
"If, on the other hand, it could be shown that disclosure would for some reason be unfair or oppressive to a party to the wardship or Children Act proceedings, that would weigh against an order for disclosure."
This Court in Re C [1997] Fam.76 set out a list of guidelines to which a court should have regard in exercising its discretion whether to order disclosure. In that case the police applied for medical reports and a transcript of evidence relating to the death of a baby, the sister of the child the subject of the court proceedings. During the care proceedings the father had admitted causing the injuries to the dead baby. The Court held that all the relevant material should be disclosed to the police.
From the guidelines in re C and the earlier decisions it is clear that the court in family proceedings is likely to disclose relevant information to the police or to a defendant to criminal proceedings unless there are powerful reasons to the contrary. Disclosure was also given to the General Medical Council in A County Council v W [1997] 1 FLR 574 where a finding of sexual abuse had been made against a registered medical practitioner in...
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