England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCFMI 97/1613 CMS2

(HIS HONOUR JUDGE BARRY )

Royal Courts of Justice

Strand

London WC2

Thursday, 26 March 1998

B e f o r e:

LADY JUSTICE BUTLER-SLOSS

LORD JUSTICE JUDGE

LORD JUSTICE MUMMERY

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W (MINORS)

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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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

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LADY JUSTICE BUTLER-SLOSS:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 so as to require leave for the disclosure of information imparted to a social worker and recorded in case notes or a report which for one reason or another has never reached the court. To do so would, in my view, not be construction but a complete rewriting of the rule and thus legislation, which is neither the function nor within the powers of the court.

I said at page 1411 of re G:-

"The narrow view is that documents treated for the purpose of court proceedings do not attract control under rule 4.23 until actually filed with the court. The alternative view is to include identifiable documents destined for the court within the control of the court."

9. It was not necessary for the decision in re G to decide how far rule 4.23 extended but I inclined to the narrower approach that it was limited to documents actually filed with the court. The issue on this appeal is one stage further on from the facts in re G since the admission has been made and written down both in notes which have not been filed with the court and in the assessment report which has been filed with the court. The passage from the judgment of Sir Roger (supra) applies,in my view, with equal force to the present documents created by the social worker by way of notes and drafts which were not filed with the court as in the case of re G (supra). Interpreting the rule narrowly, the only relevant document which I have identified above which has been filed with the court and is held by the court is the assessment report. The "working papers" which are not held by the court do not come within the ambit of the rule, unless its meaning is considerably extended. The decision of this Court in re D [1994] 1 FLR 346, a wardship case, draws a helpful distinction between the documents for which leave has to be given and those which fall outside the control of the court. The father and grandfather were charged with offences of indecency against children. In order to assist their defences at the trial, they sought disclosure of affidavits and transcripts of evidence used in the wardship hearing, and social work files relating to the wards. In his judgment Sir Stephen Brown, P. drew a distinction between the wardship documents which were part of the wardship file in the custody and control of the court, in respect of which there was no doubt that leave was required and documents held by the local authority. The President said at page 352 :-

"So far as the local authority documents (the case records, as I have termed them) are concerned, they were not adduced in evidence in the wardship proceedings. They have never been in the custody or control of the court and they do not form part of the wardship, save in so far as they may be the basis of the report which was annexed to the social worker's affidavit."

Rule 4.23 provides a protection similar to that invoked in wardship to Children Act cases. For my part, however, I am satisfied that it is not designed to provide cover which is wider than that exercised in wardship, as demonstrated in re D, (supra), that is to say the material actually provided for the court proceedings.

10. Mrs Black has relied principally on the provisions of section 12 in order to support her argument that documents not filed with the court are nonetheless protected from disclosure to the police. Section 12 is designed to protect information from publication in child family cases heard in private. The protection covers the proceedings, principally the actual hearing before the court and those proceedings cannot be, for instance, reported in the press. This section was not intended to cover documents held by social workers which have not been filed with the court nor used in the proceedings heard by the court in private. It does not seem to me that the control by the court either under the umbrella of rule 4.23 or of section 12 extends to documents outside the court proceedings. The argument of Mrs Black supporting the judge´s approach is, nonetheless, at first sight, very attractive since, if the purpose of rule 4.23 is to protect the information contained in the documents, there seems little point in having a rule which protects only the pieces of paper and not the contents. It is not, however, necessary for the court to give rule 4.23 the extended meaning suggested. The appropriate protection of information, notes and other papers from disclosure can be achieved by another route which does not do violence to the clear words of rule 4.23.

11. Local Authority files

What, therefore, is the status of the working papers and similar papers held by the social workers and what protection, if any, is afforded to those papers? In my judgment, all the documents with which we are concerned, created or obtained by and held by the social services department of the local authority in the course of its statutory duty, come under the protection of confidentiality. This part of this appeal has nothing to do with publication of information contrary to section 12 or rule 4.23 but is concerned with the limits of confidentiality and public interest immunity. The issue is whether one agency, the police, working in co-operation with another agency, social services, is entitled to share information which is subject to confidentiality in the hands of each agency and protected from general publication by the doctrine of public interest immunity. In re M (a Minor)(Disclosure of Material) [1990] 2 FLR 36, again a wardship case, this Court explained the special category of immunity enjoyed by local authority records, see also re D (supra) at page 352G. Access to confidential information, in furtherance of the best interests of children, by agencies with separate statutory duties is the subject of comprehensive guidance from Government departments.

12. Working Together

As a consequence of the passing of the Children Act, in 1991 four Government Departments jointly published a guide to arrangements for inter-agency co-operation for the protection of children from abuse, ´Working Together´. The Government departments were the Home Office, Department of Health, Department of Education and Science and the Welsh Office. The Local Authority Social Services Act 1970 requires, by section 7(1), that:-

"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."

The 1970 Act was amended by section 50 of the National Health Service & Community Care Act 1990 to include section 7A which provides :-

"Without prejudice to section 7 of the Act, every local authority shall exercise their social services functions in accordance with such directions as may be given to them under this section by the Secretary of State."

Absent an order of the court, the local authority has, therefore, to comply with the guidance given in Working Together and that requirement is set out in the Preface. Working Together sets out in detail the procedures for the close working relationship between social services departments, the police service, medical practitioners, community health workers, schools, voluntary agencies and others. As Lord Browne-Wilkinson pointed out in X (Minors v. Bedfordshire C.C. [1995] 2 AC 633 at page 750 :-

"The procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority."

Under the heading ´Legal Framework´, (paragraph 1.11), the guidance points out that the other agencies need to understand that they are not only carrying out their own agency´s functions but are also making, individually and collectively, a vital contribution to advising and assisting the local authority in the discharge of its child protection and child care duties. It states that:-

" it is essential that Area Child Protection Committee procedures provide a mechanism whereby, wherever one agency becomes concerned that a child may be at risk, it shares its information with other agencies." (paragraph 1.11)

13. Inter-disciplinary and inter-agency work is an essential process in the task of attempting to protect children from abuse. There has therefore to be the free exchange of information between the agencies in order to facilitate that work and the protection of children. This partnership, as it is called in paragraph 3.10, requires the sharing and exchange of relevant information, in particular, between the social workers and the police. At paragraph 3.10 it states:-

"Those in receipt of information from professional colleagues in this context must treat it as having been given in confidence. They must not disclose such information for any other purpose without consulting the person who provided it."

At paragraph 3.11 it states:-

"Ethical and statutory codes concerned with confidentiality and data protection are not intended to prevent the exchange of information between different professional staff who have a responsibility for ensuring the protection of children."

At paragraph 3.15 it is recognised that confidentiality may not be maintained if the withholding of the information will prejudice the welfare of a child. The involvement of the police in investigation is set out in paragraphs 4.11 et seq including the bases for a decision whether or not to initiate criminal proceedings. At paragraph 4.14 it is pointed out that, irrespective of their decision whether or not to institute criminal proceedings, the information they hold should, where appropriate, be shared with other agencies. It is essential that methods of joint working between police and social workers are established over and above the joint interviewing of child victims, (paragraph 4.17). In the present case the police attended the Case Conference held in October. The crucial picture presented by the guidance is of co-operation between the relevant agencies and free and frank exchange of information for the better protection of children. If the arguments of Mrs Black are correct the information available to social workers cannot be communicated to the police. That would drive a coach and four straight through the carefully considered guidance of the four Government Departments for joint working between police and social workers from the moment that any important information is contained in a document lodged with the court, unless or until a judge or district judge gives permission. Since child abuse allegations, especially physical abuse, may surface at a moment´s notice and an emergency protection order or interim care order may be obtained quickly, no information thereafter could be shared immediately or freely by the two main agencies bearing the brunt of the child abuse investigations. Mrs Black recognised the difficulties such an approach would create. An extreme example might be the effect of filing of police witness statements in the care proceedings in that they might not thereafter be used by the police in criminal proceedings without an application to and obtaining leave from the district judge or judge in family proceedings.

14. In re G (supra) I expressed myself on this issue at page 1410 and nothing I have heard on the present appeal leads me to change my mind that this result is as absurd as the failure to protect information was said by the judge to be if the umbrella of rule 4.23 is not extended to cover information as well as documents. The effect of disclosure to the police by social services is for two agencies, each bound at that stage by confidentiality, to share information and disclose documents to each other in the spirit of "Working Together." The information and documents remain confidential vis-a-vis the public unless or until it is disclosed with leave in the family proceedings if it ever becomes part of those proceedings, or it is necessary under the separate statutory duties of the police to disclose it for the purpose of criminal proceedings. The confidentiality by which both the agencies are bound is the appropriate and sufficient protection of the information with which this appeal is concerned. The notes of the two interviews with the mother and the notes of the social workers´ meeting are not documents held by the court relating to proceedings nor are they covered by the provisions of section 12. The police are entitled to ask the local authority for an opportunity to see them without reference to the court. It is important to make clear that, on this appeal, we are concerned solely with documents held by and information known to social workers and the decision has no application to the wholly different position of a guardian ad litem or indeed a court welfare officer appointed for the purpose of court proceedings.

15. Exercise of discretion under Rule 4.23.

I turn now to the assessment report which was filed with the court and clearly requires leave of the court for it to be disclosed to the police. That leave was refused both by the district judge and by the judge. Booth J in re S (Minors)(Wardship:Investigation) [1987] Fam 199 considered the likely outcome and effect upon a ward of granting the police application to disclose the information. She said at page 204:-

"when balanced against the competing public interest which requires the court to protect society from the perpetuation of crime it could only be in exceptional circumstances that the interests of the individual ward should prevail."

Her judgment was approved in re F (Minors)(Wardship: Police Investigation) [1989] Fam 18. Sir Stephen Brown, P in re D (supra) said at page 351 that the principle is quite clear that the judge:-

"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 that the interests of justice are properly served."

16. The factors to be taken into account in the balancing exercise were again considered by the Master of the Rolls in re L (Police Investigation: Privilege) [1996] 2 WLR 395. Lord Jauncey of Tullichettle on the appeal to the House of Lords said in his speech at page 404:-

"Indeed, in proceedings of this nature it would be most unsatisfactory if the court, having information that the mother might have committed a serious offence against the children whose welfare it was seeking to protect, should be disabled from disclosing such information to the appropriate investigating authority.

In re A (Criminal Proceedings:Disclosure) [1996] 1 FLR 231 this Court gave further similar guidance. These decisions were reviewed by this Court in re EC (Disclosure of material) [1996] 2 FLR 725. In that case the information sought by the police was principally the medical reports and transcripts of oral evidence given by the medical witnesses in the care proceedings heard by Wall J. rule 4.23 applied to the reports. Section 98(2) of the Children Act and section 12 of the Administration of Justice Act governed the oral evidence at the hearing. Swinton Thomas LJ in his judgment at page 731 set out a list of 10 factors to take into account which, he said, were not exhaustive and were not placed in any order of importance since the importance of the various factors will inevitably vary very much from case to case.

17. In the present appeal we are concerned with the stage before the oral evidence, but the guidelines set out by Swinton Thomas LJ are equally applicable to this point of the proceedings. Judge Barry recognised that he had to take into account a number of factors in the exercise of his discretion. He was right to consider the welfare of the two children, the absence of danger to them or to other children from the mother, the importance of the maintenance of confidentiality and of encouraging frankness in children cases. But in assessing the risks and benefits of permitting or inhibiting a prosecution, in my judgment, he fell into error in a number of ways. His reliance upon the importance of contact between the children and their mother is a factor likely to arise in most cases, even where a prosecution is inevitable, and cannot therefore carry much weight. He does not appear to have given any weight to some of the factors set out by Swinton Thomas LJ, in particular, (5):-

"the public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice."

and (6):-

"The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been found guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor."

and (8):-

"The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools etc. This is particularly important in cases concerning children."

18. Both he and the district judge considered, somewhat surprisingly as Mr Harrison pointed out, that the seriousness of the offence and the possibility of the mother receiving a prison sentence were reasons not to disclose to the police rather than to give the police the information. In this case the alleged offence is serious although there appears to be evidence, particularly psychiatric evidence, which may give a very different slant to the reasons why the child was injured. At the stage of considering leave it is not for the family judge to exercise the discretion of the police and the Crown Prosecution Service whether or not the mother should face a trial. I am satisfied that the judge´s approach to the exercise of his discretion under rule 4.23 was flawed and cannot stand.

19. It falls therefore to this Court to exercise its discretion on the police application to see the assessment report. In reality, in this case, it does not much matter whether they get leave or not. The thrust of the police case has been to obtain the notes of the social worker and the assessment report may not add very much. The effect of that situation gives, in my judgment, considerable weight in the balancing exercise in favour of the police application. Material disclosure will in any event take place when the local authority give the police the notes of the interviews. The disclosure in this case will not adversely affect the children. I would however go further. In a case such as this where the police and the social workers are working together, a family judge should hesitate before refusing to provide relevant and significant information to the police. There will be cases where the evidence is peripheral and the harm of giving leave will outweigh the value of the information. But the police investigations require them to put together a jigsaw of information in order to carry out their important public duty. The family judges ought not to frustrate the investigation of potential crimes (which includes the dissipation of unfounded suspicions against the innocent) without good reason, even more so when the police are working alongside the social workers on the same case. The arguments put forward by Mrs Black of stress on the mother, the grandparents and consequently the children should not in a case like the present prevail over the strong public interest in making the information available to the police. I would exercise the discretion of this Court to give leave to disclose the assessment report to the police. When the information is made available to the police, I would urge them to take it together with our judgments as soon as possible to the Crown Prosecution Service so that a decision whether to prosecution can be made quickly in this unusually sad case.

I would dismiss the appeal and allow the cross appeal.

LORD JUSTICE JUDGE: I agree.

LORD JUSTICE MUMMERY: I also agree.

Order: Appeal dismissed; cross appeal allowed; no order as to costs, save legal aid taxation to include costs reasonably incurred by the Guardian ad Litem.