Re W (Disclosure to Police)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE JUDGE,LORD JUSTICE MUMMERY |
| Judgment Date | 26 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0326-17 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 97/1613 CMS2 |
| Date | 26 March 1998 |
[1998] EWCA Civ J0326-17
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE BARRY)
Royal Courts of Justice
Strand
London WC2
Lady Justice Butler-Sloss
Lord Justice Judge
Lord Justice Mummery
CCFMI 97/1613 CMS2
MRS J M BLACK QC & MR J GODFREY (Instructed by Switalski's, West Yorkshire, WF1 2SX) appeared on behalf of the Appellant (Mother)
MR MICHAEL HARRISON QC & MR PAUL WILSON (Instructed by Force Solicitor, Police H. Q., Laburnum Rd., Wakefield, WF1 3QP) appeared on behalf of the Fourth Respondent (Police)
MISS E R AUCKLAND (Instructed by Town Hall, Wood St., Wakefield, WF1 2HQ) appeared on behalf of the Local Authority
The (First Respondent) Father did not appear and was not represented
The Third Respondents (Maternal Grandparents) did not appear and were not represented
This appeal and cross appeal arise from the decision of His Honour Judge Barry on the 7th November 1997 allowing in part an appeal from District Judge Giles on the 22nd May 1997. The appellant is the mother of two children, D. born on the 27th October 1995 and C. born on the 18th September 1996. The Chief Constable has filed a Respondent's Notice by way of cross appeal. The local authority attended the appeal but its stance is neutral and Miss Auckland on its behalf indicated that, if not restrained by a court order, it will provide the police with the relevant documents. The guardian ad litem did not attend the appeal but provided a written report about the children in which he indicated that to provide the information to the police would not be in the interests of the children.
One difficulty in this case is that the police do not at this moment have all the information which was before the judge and is before this Court since their application to be provided with it has not yet been granted. Consequently it is necessary in this judgment to be careful to give only a brief background to the case on facts known to all the parties. The mother took the elder child to hospital on the 4th July 1996 and he was admitted for reasons unconnected with the police investigation. Whilst there the doctors were concerned about the size of his head circumference and he was found to have two subdural haematomas which raised the suspicion of non-accidental injury. On his discharge from hospital the local authority obtained an interim care order and he was placed with foster parents. After his birth the younger child also was the subject of an interim care order and placed with foster parents. Since April 1997 the two children have lived with their paternal grandparents. The local authority obtained a care order by consent on the 2nd June 1997 and the current plan is for the children to remain with the grandparents with supervised contact to the parents.
In September 1996 the social workers began an assessment of the parents. On the 8th October the police arrested both parents and interviewed them but to date have not charged either of them. During the assessment interviews the mother admitted to the social worker that she had shaken D. In February 1997 the social work assessment was concluded. The local authority, on the advice of its legal department, sought a direction from the district judge on the 20th February whether it required the leave of the court to inform the police of the admission by the mother. The district judge held that no leave was required to inform the police of the general nature of admission made by the mother to the social worker. The local authority then wrote to the police. The letter also informed the police that the assessment report including the admission was filed with the court and that leave would be required for the police to see the report. The police applied to be made a party to the proceedings for the purpose of seeing the assessment report and associated documents and for permission to interview the social worker. On the 2nd May 1997 the Chief Constable was joined as a party.
At the hearing on the 22nd May the district judge refused leave to the police to see the assessment report under rule 4.23 of the Family Proceedings Rules 1991. He also held that the preparatory documents for the assessment report and any other records held by the social workers were not to be made available to the police and the social workers were not to divulge to the police the substance of the admissions made by the mother. The police appealed to the county court judge who allowed the appeal in part. He held that no leave was necessary for the social worker to pass on the information to the police and to give a statement to the police for the purpose of criminal proceedings.
He also held that:-
"to give the Rule the effect that has been desired by Parliament and the author of the Rules (its proper effect) it is necessary to read the Rule in a very broad sense so that the expression "no document other than a record of an order" should be read as to mean, "no information which has been enshrined in such a document shall be disclosed other than to the listed parties without leave of a Judge or District Judge."
I am prepared to say that I cannot see how the Rule could have effect without extending the protection it gives to copies of the documents referred to in the Rule, or to drafts of such documents, or preliminary notes to the construction of such a document. Each of those things, of course, would be documents themselves and are so closely related to the documents covered by the Rule that I accept the argument of Mr Godfrey that it would be absurd not to give the protection to those as well, but it is such a stretch of inference, it seems to me, to say therefore to give full value to the Rule the information itself has to be protected so as to prevent the witness divulging it to anyone else."
He ruled that the notes of the interviews and the meeting of the social workers were covered by rule 4.23 and decided, for reasons to which I shall refer later, to refuse leave to provide the documents to the police and gave leave to appeal to this Court.
The main issues before this Court are:-
a. the scope of rule 4.23
b. the status of the documents not covered by rule 4.23
c. the exercise of discretion by the court on the application for leave to disclose documents under rule 4.23.
Mrs Black QC for the mother submitted that the documents were covered by section 12 of the Administration of Justice Act 1960. This section protected from publication proceedings which related to the inherent jurisdiction of the High Court with respect to minors and proceedings brought under the Children Act 1989. Those proceedings were exceptions to the general rule under section 12 that the publication of information relating to proceedings before any court sitting in private shall not of itself be a contempt of court. She also submitted that rule 4.23 covered preparatory documents, in this case the "working papers" from which the report was written. Not to do so, submitted Mrs Black, would destroy the protection inherent in the rule and the effectiveness of the court control, since, as a matter of common sense, information contained in documents filed with the court is likely to be available in note form or draft form in the files of the social workers. The leave requirement could then be circumvented by calling for the notes or drafts which did not require the leave of the court. Most of the information contained in those documents would also be held in other documents and the use of rule 4.23 would be ineffective.
Mr Harrison QC, upon behalf of the Chief Constable, asked us to take into account the duties of the police to investigate as well as to prosecute and submitted that the police in conjunction with the Crown Prosecution Service, exercised their own discretion whether to prosecute based upon the Code for Crown Prosecutors which included the public interest test and factors for and against prosecution. These factors included—the seriousness of the offence, the likelihood of it recurring, whether the offence was committed as a result of a genuine mistake or misunderstanding and significantly in this case, the state of health, mental or physical, of the offender at the time of the offence. He argued that the judge was wrong to extend the ambit of rule 4.23 to include the notes of interviews and notes of the meeting which had not been filed with the court. He further submitted that the judge erred in the exercise of his discretion in refusing to allow the police to see the assessment report.
Rule 4.23
Rule 4.23 states:-
"Confidentiality of documents. (1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies 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."
For this rule to apply, the requirements are:-
(i) a document
(ii) held by the court
(iii) relating to proceedings.
In Re G (a Minor) (Social Worker:Disclosure [1996] 1 WLR 1407, Sir Roger Parker said at page 1419:-
"The wording of rule 4.23 of the Family Proceedings Rules 1991 appears to me to be plain. Leave to disclose is only required in respect of documents and only in respect of documents held by the court. The rule thus follows established wardship practice as can be seen from the judgments of this Court in re D (Minors)(Wardship:Disclosure) [1994] 1 FLR 346. I can see neither need nor justification for extending the scope of the words...
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