Re X (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby, President Of The Family Division |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] EWHC 2522 (Fam) |
| Court | Family Division |
| Docket Number | Case No: OA10C00037 |
| Date | 23 July 2014 |
[2014] EWHC 2522 (Fam)
This judgment was delivered in open court
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BRISTOL DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby President of the Family Division
Case No: OA10C00037
The applicant (the father) appeared in person
Ms Tanya Zabihi (instructed bylocal authority solicitor) for the local authority
Mr Robin Tolson QC (instructed by local authority solicitor) for the Local Safeguarding Children Board
Ms Melanie Carew (of Cafcass Legal) as advocate to the court
Hearing date: 7 July 2014
This is an application by the father of a boy, X, now 13 years old, who was the subject of care proceedings which began in October 2010. A few days later X was stabbed by his mother, suffering potentially life threatening injuries from which happily he has recovered. The care proceedings were concluded on 17 January 2012 with the making of a care order, which the father sought unsuccessfully to challenge in the Court of Appeal. A subsequent application by the father on 25 September 2013 for discharge of the care order was withdrawn by him. The most recent hearing in relation to the father's contact with X was on 5 March 2014. The father has also made various attempts out of court to complain about the local authority's actions.
In accordance with the relevant provisions of the Children Act 2004, the Local Safeguarding Children Board (LSCB) undertook a serious case review (SCR), which was completed in 2011. As required, the LSCB produced an overview report and an executive summary.
In contrast to the Welsh legislation (as to which see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628), the relevant English legislation has very little to say about the publication of SCRs. Both the Children Act 2004 and the relevant regulations, The Local Safeguarding Children Boards Regulations 2006, SI 2006/90, are silent on the point. It is dealt with in the statutory guidance issued pursuant to section 16(2) of the 2004 Act.
At the material time the relevant guidance was to be found in Chapter 8 of Working Together to Safeguard Children, published in March 2010. Paragraph 8.44 provided that the LSCB "should" provide an anonymised copy of various documents, including the overview report, to certain specified agencies and that the LSCB "should … publish only the SCR executive summary". Paragraph 8.50 provided that "Neither the SCR overview report nor the [not relevant for present purposes] should be made publically available."
The statutory guidance was changed by a ministerial letter dated 10 June 2010 which, so far as material, provided that LSCBs "should publish overview reports of all new SCRs initiated on or after 10 June 2010 … unless there are compelling reasons relating to the welfare of any children directly concerned in the case for this not to happen."
The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X's current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X's parents.
Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:
"The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X's recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published."
The LSCB had in fact considered this advice at a meeting on 14 October 2011. Having noted, in particular, X's age and awareness, his location in the local school and community and the impact of potential media intrusion on a vulnerable child, the LSCB concluded that the potential risk to X of publishing the executive summary was significant and resolved not to publish the report.
On 14 December 2011 the local authority issued an application in the care proceedings seeking "guidance from the Court in respect of disclosure of the Overview Report and Executive Summary." The application:
"requested that the Court consider the relevance of whether the reports should be disclosed in their entirety or in part into the proceedings. If the Court determines that there should be no disclosure the Court is requested to comment and give guidance on disclosure to the parents and how this can be done."
The application was supported by a statement from Mr D, who set out the facts summarised in paragraphs 6 and 7 above and continued:
"Notwithstanding the recommendation of [the LSCB] on 15 July 2011 that the Local Authority should make the Overview Report and Executive Summary available as part of the Court Proceedings—the Court is invited to consider if this remains helpful to the proceedings and, taking account of [the LSCB's] concerns, to determine whether the Overview Report and Executive Summary should be disclosed to family members and into the proceedings."
On 19 December 2011 His Honour Judge Barclay, sitting as a Judge of the High Court, made an order directing that there should be no disclosure of the SCR report until further order. On 10 January 2012 Judge Barclay made an order at the IRH giving directions in the care proceedings, fixed for final hearing on 17 January 2012. The order contained the following recital:
"UPON the issue of disclosure of the LSCB report in these proceedings being raised by the Children's Guardian and the court considering that it has no jurisdiction to make binding orders on the issue of publication which remains within the remit of the LSCB itself."
At the IRH the local authority agreed, however, that the father should be allowed to read the overview report, which he did on three subsequent...
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