AS TO THE ADMISSIBILITY OF
Application no. 34222/96
against the United Kingdom
The European Court of Human Rights sitting on 7 September 1999 as a Chamber composed of
Mr J.-P. Costa, President,
Sir Nicolas Bratza
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr K. Traja
with Mrs S. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 September 1996 by L against the United Kingdom and registered on 18 December 1996 under file no. 34222/96;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 21 November 1997 and the observations in reply submitted by the applicant on 6 February 1998;
Decides as follows:
The applicant is a British citizen, born in 1970, and resident in Manchester. She is represented before the Court by Messrs. Green & Co., solicitors practising in Manchester.
The facts of the case, as they have been submitted by the parties, may be summarised as follows.
A. Particular circumstances of the case
The applicant is the mother of two children, E.L. and C.L., who were born respectively on 1 May 1990 and 11 December 1991. On 16 January 1993, E.L. was admitted in a serious condition to Booth Hall Children's Hospital, Manchester, after she had ingested a quantity of methadone. The child survived.
At the time of the incident both the applicant and the children's father were registered heroine addicts. Both had been prescribed methadone as a substitute. The incident was investigated by the police and Manchester City Council, the local authority responsible for the children's welfare. The explanation given by the applicant was that the child had ingested the methadone accidentally. The police were of the view that the applicant had deliberately administered methadone to the child, who was suffering from toothache and who could not be pacified, in order to induce her to sleep, but considered there to be insufficient evidence to prosecute the applicant.
Manchester City Council (hereinafter “the Council”) instituted care proceedings under the Children Act 1989 and obtained an emergency protection order in respect of the children from Manchester City Magistrates Court on 22 January 1993. On 29 January 1993, following the transfer of the proceedings to Manchester County Court, the Council obtained an interim care order which was thereafter renewed until the final order was made on 27 July 1994.
On 6 May 1993, the applicant through her legal advisers sought the leave of the court under rule 4.23 of the Family Proceedings Rules 1991 for disclosure of the court papers, which included E.L.'s hospital case notes, for the purpose of preparing an expert's report dealing with the consumption of methadone by E.L. The District Judge made an order that:
“The parents shall have leave to disclose to a medical expert the Court papers for the purposes of a report regarding the frequency of the consumption of methadone by <E.L.>. The identity of such report is to be disclosed to all parties. The report is to be filed by the 27 May 1993.”
The order accorded with the general practice relating to the disclosure of expert evidence then pertaining in the County Court in child care proceedings, which procedure was subsequently endorsed by the Court of Appeal in Oxfordshire County Council v. M ((1994) Fam 151). The effect of the order was that the report when filed would be available for inspection and copying by any party to the proceedings and the Guardian ad Litem.
The applicant, though her legal advisers, commissioned a report from a consultant clinical pathologist, Dr F. He was instructed to advise whether, on the basis of the hospital case notes which had been released by the court, the ingestion of methadone by the child had been an isolated incident, or was one of a number of such incidents. In his report dated 10 August 1993, Dr F. concluded that there was no evidence of habituation to methadone, but went beyond the remit of his instructions to express doubts about the account of the incident which the applicant had given to the police.
The report was lodged with the County Court pursuant to the District Judge's order of 6 May 1993. At that stage, notwithstanding that the report was adverse to their client's interests and tended to incriminate her, the applicant's lawyers did not appeal the order or apply to vary its terms.
On 27 July 1994, by consent, the court made a residence order in respect of both children to the father with contact to the applicant, and granted supervision orders to the Council.
The police, on learning of the existence of the report and that it tended to incriminate the applicant, applied to the County Court for an order that the report be disclosed to them. On 1 July 1994, the matter having been transferred for determination by the High Court, Judge Bracewell made an order authorising disclosure of the report to the police. The applicant appealed against the order on grounds (i) that the report was protected by legal professional privilege; (ii) that its disclosure would infringe her privilege against self-incrimination; and (iii) that the judge had erred in the exercise of her discretion in authorising the disclosure of the report. The applicant's appeal was dismissed by the Court of Appeal on 14 March 1995 who refused the applicant leave to appeal to the House of Lords. Leave was subsequently granted by the House of Lords on 22 May 1995. On 21 March 1996, by a majority of three to two, the House of Lords dismissed the applicant's appeal (see the Relevant Domestic Law and Practice for the reasons for the decision).
Following a child protection conference, the children were removed from the Child Protection Register in June 1995, at which time it was reported that they were living happily with their father. The supervision order expired in July 1995 and the Council has had no further involvement.
According to the Government, the Crown Prosecution Service, having considered the expert report and further statements obtained by the police, decided not to prosecute the applicant as there was insufficient evidence against her.
B. Relevant domestic law and practice
The law in relation to legal professional privilege and litigation privilege was analysed in some detail by the House of Lords in giving their judgment in the instant case. In giving the judgment of the majority, Lord Jauncey reasoned, inter alia, as follows:
“<Various judgments have> all emphasised the important part which litigation privilege plays in a fair trial under the adversarial system. This raises the question of whether proceedings under <the Children Act 1989> are essentially adversarial in their nature. If they are, litigation privilege must continue to play its normal part. If they are not, different considerations may apply.
I agree with the President <of the Family Division> that care proceedings are essentially non adversarial. Having reached that conclusion and also that litigation privilege is essentially a creature of adversarial proceedings it follows that the matter is at large for this House to determine what if any role it has to play in care proceedings.
Before <Dr F.> could report it was necessary to obtain the leave of the District Judge under rule 4.23 <of the Family Proceedings Rules 1991> to disclose to him the court papers. His report appears to have been based entirely on the hospital case notes and there is no suggestion that he had any communication with the <applicant>. Accordingly all material to which he had access was material which was already available to the other parties. ...
However in these proceedings which are primarily non-adversarial and investigative as opposed to adversarial the notion of a fair trial between opposing parties assumes far less importance. In the latter case the judge must decide the case in favour of one or other party upon such evidence as they choose to adduce however much he might wish for further evidence on any point. In the former case the judge is concerned to make a decision which is in the best interest of the child in question and may make orders which are sought by no party to the proceedings (sections 10(1)(b), 31(5), 34(5) <of the Children Act 1989>). Furthermore the court has wide powers under rule 4.11.(9)(10) <of the Family Proceedings Rules 1991> to require the guardian ad litem to obtain expert reports and other assistance. Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that the care proceedings under Part IV <of the Children Act 1989> are so far removed from the normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child. In reaching this conclusion I attach considerable importance to the following dictum of <the President of the Family Division> in the Oxfordshire case … :
‘If a party, having obtained the leave of the court, were to be able to conceal, or withhold from the court, matters which were of importance and were relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted as the Children Act 1989 requires.’
I would add that if litigation privilege were to apply to Dr F.'s report it could have the effect of subordinating the welfare of the child to the interests of the appellant in preserving its confidentiality. This would appear to frustrate the primary object of the Act.
... The better view is that litigation privilege never arose in the first place rather than that the court has power to override it. It is excluded by necessary implication from the terms and overall purpose of the Act. This does not of course affect privilege arising between solicitor and client. ...
Where a court is asked to make an order for disclosure compliance with which is likely to involve the danger of self-incrimination by the defendant an order producing such a result should not be made ... This, however, was not such a case. When the appellant applied for the order of 6 May 1993 the District Judge had no reason to suppose that the report which was sought might incriminate the person who was seeking it. In that situation he cannot be criticised for requiring disclosure of the report to all parties. It was only when the report became available that its possible incriminating effect became known and it was at that stage when the <applicant> was first in a position to advance her claim to privilege by seeking a variation of that part of the order which required the report to be filed. In the event she filed the report without taking any steps to assert a claim of privilege. Thus the <applicant> voluntarily initiated the process, did not appeal the order when it was made and obtempered it without seeking a variation notwithstanding the unfavourable nature of the report had by then become apparent.”
In giving the judgment of the minority, Lord Nicholls gave amongst his reasons the following :
“... The expression adversarial carries with it a connotation of confrontation and conflict. Ideally, these characteristics have no place in family proceedings. In family proceedings all parties should be working together to assist the court in finding the answer which will best promote the welfare of the child. In practice matters are not so simple. A father who is alleged to have sexually abused his stepdaughter is concerned to protect his own reputation as well as his family life. He can hardly be blamed if he regards the proceedings as no less confrontational and adversarial than any other civil proceedings. This feature throws little light, if any, on the present question.
At bottom, the answer to the present question turns on what are the requirements of procedural fairness in the conduct of family proceedings. In this context the contrast between inquisitorial and adversarial needs handling with care, for at least two reasons. First, the contrast suggests that proceedings are either wholly adversarial or wholly inquisitorial. They partake wholly of one character or wholly of the other. This is not always so. Proceedings may possess some adversarial features and some inquisitorial features. Family proceedings are an example.
Second, and more importantly, the contrast can all too easily divert attention from the crucial question. Fairness is a universal requirement in the conduct of all forms of proceedings, inquisitorial as much as adversarial, although the requirements of fairness vary widely from one type of proceedings to another. The requirements of fairness depend upon matters such as the nature of proceedings, the subject matter being considered, the rules governing the conduct of the proceedings, the parties involved, the composition of the tribunal, and the consequences of the decision. The distinction between the adversarial and inquisitorial nature of proceedings is no more important than one of these elements, although sometimes a very important element. The crucial question is not whether, and to what extent, the proceedings are inquisitorial rather than adversarial. The question to be addressed is what is required if the proceedings are to be conducted fairly.
Family proceedings are court proceedings. The court has to make decisions affecting, often profoundly, the whole future of a child and his or her family. Whenever necessary, the court makes findings of fact. It goes without saying that the parties to such proceedings are entitled to have a fair hearing. Whatever fairness does or does not require in other contexts, in this context a fair hearing includes at least the right to present one's case and to call evidence.
Under English law an established ingredient of this right is legal professional privilege. Parties preparing for a court hearing may obtain legal advice in confidence. A party cannot be required to disclose communications between himself and his lawyer, or communications between the lawyer and third parties which come into existence for the purposes of obtaining legal advice in connection with proceedings. A proof of evidence from a witness is not disclosable. Nor is a report obtained from a potential witness of expert opinion. A party may be required to produce a witness statement or expert's report in advance as a pre-condition to the admission of that evidence at the hearing, but he is not required to disclose proofs of witnesses whose evidence he does not intend to adduce at the hearing. The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases.
I can see no reason why parties to family proceedings should not be as much entitled to a fair hearing having these features and safeguards as parties to other court proceedings. Indeed, it must be doubtful whether a parent who is denied the opportunity to obtain legal advice in confidence is accorded the fair hearing to which he is entitled under article 6(1), read in conjunction with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
...<A>n expert can be compelled to give evidence on an issue in the proceedings, even if he has already made a privileged report to a party who decides to put that report in evidence. I must now address an argument that, this being so, imposing a condition is no more than sound and sensible case management. When the court imposes the condition it is doing no more than achieve, by a convenient and expeditious route, a result the court could in any event achieve: production of the expert's evidence on an issue in the proceedings.
If this were the only effect of a disclosure condition, I would agree with the submission. In practice, however, a disclosure condition would be bound to have an inhibiting effect on communications between the solicitor and the expert. An expert's report usually has to be read in conjunction with the letter of instructions. The solicitor would always be looking over his shoulder, conscious he is writing an “open” and not privileged letter. The expert would need to confine himself strictly to the issue on which his advice is compellable, and not range more widely, because his report also would be open and not privileged. These would be significant inroads into the freedom and frankness of confidential communication which the privilege exists to secure. For this reason a disclosure condition goes beyond the convenient ordering of evidence.
This mischief is not cured by giving a party leave to return to the court and apply for the disclosure condition to be lifted after the report has been prepared. There could be no certainty that the condition would be lifted. So at the earlier stage, when the report is being obtained, the inhibitions on freedom of communication would still be present.
Your Lordships were told <by counsel for the applicant> that the present practice is a cause of considerable anxiety to parents. I would expect this to be so. There are bound to be problems when confidentiality is removed from communications a party needs to make in preparing properly for a hearing. I do not think the present practice can be regarded as satisfactory.”
1. The applicant invokes Article 6 § 1 of the Convention. The applicant complains that:
a) she was deprived of a fair trial in that, since her right to obtain an expert report was made subject to a condition that she disclose the report, she was compelled to elect between commissioning the report, thereby divesting herself of the normal privileges available to the applicant, namely legal professional privilege and the privilege against self-incrimination, or not commissioning a report to the detriment of her ability to receive advice and prosecute her case;
b) the order directing disclosure of the report to the police was such as to infringe her right against self-incrimination and so undermine her right to a fair trial in respect of any criminal charges which may be brought against her.
2. The applicant complains that the obligation to disclose the report amounts to an interference with her family and private life under Article 8 § 1 of the Convention which is not justified by the terms of paragraph 2 thereof.
The application was introduced on 16 September 1996 and registered on 18 December 1996.
On 11 September 1997, the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 21 November 1997. The applicant replied on 6 February 1998.
On 21 January 1998, the Commission granted the applicant legal aid.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
1. The applicant complains under Article 6 § 1 of the Convention that she was subject to an obligation to disclose an expert report obtained by her in child care proceedings and that this report was also disclosed outside the proceedings to the police in breach of her privilege against self-incrimination.
Article 6 § 1 in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing.”
a. As regards the applicant’s allegation that the disclosure condition rendered the child care proceedings unfair, the Government state that the primary consideration in these proceedings was the welfare of the child and she could claim no right to confidentiality in her expert reports since this would subordinate the child’s interests to her own. The report contained in fact no confidential material and in any event the expert witness could have been subpoenaed as a witness and would have been bound to answer any questions as to the opinion which he had formed after reading the hospital case notes.
The applicant contends that the report was necessary to refute the allegation being made in the proceedings that the child had regularly ingested methadone. She submits that the courts were bound by previous case-law on disclosure and appeal against the disclosure condition in the child care proceedings themselves would have been futile. A possible application to lift the disclosure condition after the report had been made was not relevant since the applicant could not be certain the condition would be lifted prior to commissioning the report. Since the expert expressed his opinion on issues which were not requested by the applicant, there was indeed no basis to anticipate the difficulties. She emphasises that the principle of disclosure as applied in the child care procedure meant that the applicant was faced with the choice of either pursuing her case properly in the care proceedings, thereby jeopardising her position in any criminal investigation, or protecting herself against incriminatory material being disclosed to the prosecuting authorities, thereby sacrificing her ability to challenge allegations made against her in care proceedings.
The Court recalls that the matters concerning the admission of evidence are governed primarily by the rules of domestic law - this includes issues relating to the disclosure by parties of their evidence and the categories of documents to which privilege may obtain. The Court’s task is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was submitted were fair (see eg. Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 232, p. 20, § 43).
The Court notes that the rule regarding disclosure of expert evidence applied to all parties in the Children Act proceedings, who were aware of this requirement. While the applicant argues that she was placed in an invidious position of choosing whether or not to risk obtaining an expert opinion in view of this requirement, the Court observes that the other parties in the proceedings would also have had to face this dilemma. In this case, the applicant did choose to obtain an expert report which contained an adverse opinion on one point. Since the applicant, who was legally represented, would have been able, if she so wished, to seek other evidence to counter the effect of that aspect or to present any arguments relevant to the credibility or weight to be attached to the opinion, the Court is not persuaded that she was deprived of an adequate or proper opportunity to present her case. Nor was she placed in a worse position than any other party in the proceedings. Further, as the applicant agreed to the final order issued by the court in the proceedings, the Court is unable to examine whether the court acted in any way arbitrarily or unreasonably in the way it assessed the evidence before it.
The Court concludes that the obligation imposed on the applicant to disclose the expert’s report did not deprive her of a fair trial in the proceedings, taken as a whole. Her complaints must therefore be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
b. As regards the applicant’s allegation that the disclosure infringed her right against self-incrimination, the Government submit that, since no criminal proceedings were in fact brought, there could be no breach of her right against self-incrimination and point out that if criminal proceedings had been brought she could have made applications at that time that the report should not be admitted as evidence. They also submit that the applicant could have appealed against the disclosure condition imposed when the court granted her permission to disclose confidential materials to an expert. She may therefore be regarded as having waived any objections in this respect. Nor since it appears that the expert based himself solely on hospital records without interviewing the mother was there any question of information being disclosed from the applicant which was not hitherto available.
The applicant points out that the police sought access to the report for the purpose of criminal proceedings and that since there is no period of limitation she still may be charged and tried at a future time and is still in jeopardy. Since in any event, until the Crown Prosecution Service decided not to prosecute (which date is not known to the applicant), the applicant was at risk of prosecution and facing a criminal charge. Even though the admissibility of the report could be challenged at any such trial, it is a matter for the discretion of the judge and there are no reported cases on the application of the discretion in a case of this kind.
The Court observes that while it has held that the privilege against self-incrimination is embraced in the concept of fair procedure guaranteed in Article 6 §1 of the Convention (see John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 49, § 45) the cases in which the privilege was regarded as a relevant consideration concerned criminal proceedings. It does not find, in the circumstances of the present case, that the compulsory disclosure of an adverse expert report in child care proceedings themselves concerns any issue of self-incrimination separate from the general considerations of fairness examined above.
As regards the applicant’s complaints that the report was disclosed to the police who were considering whether or not to bring criminal proceedings, the Court notes that no proceedings were in fact brought. The Court has no reason to doubt the Government’s submission that the Crown Prosecution Service decided that there was insufficient evidence to prosecute. Since more than six years have now passed since the incident in question, the risk, adverted to by the applicant, that a decision to prosecute might be taken in the future, appears to the Court to be hypothetical.
However, even assuming that the preliminary steps taken by the police by way of investigation rendered the applicant subject to a “criminal charge” for the purposes of bringing the guarantees of Article 6 § 1 into play, the Court considers that the obligation to produce an expert report must be distinguished from coercion placed on an accused to give evidence against herself. As held in the Saunders case (Saunders v. the United Kingdom judgment of 17 December 1996, Reports 1996-VI, pp. 2064-5, § 69), the right not to incriminate oneself is primarily concerned with respecting the will of the accused person to remain silent and does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers and which has an existence independent of the will of the accused (eg. documents, breath, blood, urine and tissue samples). In that sense, the compulsory production of the adverse report of the expert does not involve any infringement of the applicant’s privilege not to incriminate herself. It observes that the expert did not question or interview the applicant and thereby pass on in his report any confidences from the applicant, but referred only to the hospital notes.
The Court finds therefore that the applicant’s complaints in this respect disclose no violation of Article 6 § 1 of the Convention and must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. The applicant submits that the disclosure of the report also infringed her right to respect for family life contrary to Article 8 of the Convention, which provide as relevant:
“1. Everyone has the right to respect for his ... family life ... .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court notes that the child care proceedings involved the issues of access and custody of the applicant’s child and, insofar as they resulted in a decision of the court rejecting the applicant’s applications for residence, they may be regarded as disclosing an interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention.
As regards whether or not that interference was justified in terms of the second paragraph of this Article, the Court finds that the decision was taken by a competent court and, it is not contested by the applicant, pursued the aim of the welfare of the child. The only issue arising is whether the applicant’s interests as the mother of the child were protected in the decision-making procedure adopted in the case, in particular, in light of the obligation to disclose the adverse expert report. The Court’s case-law establishes that, while there are no explicit procedural requirements contained in Article 8, where decisions may have a drastic effect on the relations between a parent and child and may become irreversible, there is a particular need for protection against arbitrary interferences. In a case where it was alleged that the local authority had not consulted the parents of a child in its care before taking crucial decisions as to its future, the Court held:
“In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.” (W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64).
In the present case, the Court recalls that the applicant faced allegations of administering methadone to her daughter and obtained leave of the court to submit the court papers to an expert for the purpose of obtaining a report on the medical aspects of the case. It notes that pursuant to the disclosure order she was under an obligation to disclose this report even if, as turned out, it contained an element unfavourable to her case - namely, although the doctor’s report stated that there was no evidence that the child had regularly ingested methadone, it added the opinion that the applicant’s account of accidental ingestion on one occasion gave rise to doubts. In the proceedings which followed regarding the privilege which did or should attach to such expert reports, the domestic courts emphasised that Children Act proceedings centred on the welfare of the child and non-adversarial and investigative considerations took the fore. On that basis, any material relevant to the future of the child should not be withheld.
The Court concurs with the importance of the welfare of the child in cases concerning children. This must not however prevent a parent being able effectively to participate in the decision-making process concerning a child. It observes that the disclosure condition in these proceedings applied potentially to all parties and therefore could, in other circumstances, have operated in her favour. It was also open to the applicant to apply to obtain further evidence to counter the opinion of the doctor. She was represented by a solicitor and counsel and would have been able to present any arguments relevant to the credibility or weight to be attached to the doctor’s opinion. In the event, the applicant agreed to a consent order awarding residence to her daughter’s father and it is not apparent that the applicant sought in the court proceedings to vindicate her position any further. In those circumstances, it is not possible to assess whether or not the offending passage in the report would have played any significant or disproportionate role in the court’s decision.
The Court accordingly finds that the disclosure requirement regarding the expert’s report has not been demonstrated as depriving the applicant of a proper or adequate opportunity to protect her interests. Any interference may therefore be regarded as compatible with the requirements of Article 8 § 2 of the Convention, in particular “the protection of health and morals” and “the protection of the rights and freedoms of others” in relation to the applicant’s daughter.
It follows that this part of the application is also to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S Dollé J.-P. Costa