England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

		14/04/2007

Peter Jackson QC

1. Great efforts are made to protect the anonymity of adopters in confidential adoption proceedings. In the relatively few cases of other kinds that call for the same approach – of which this case and Re F (a child) (indirect contact through third party) [2006] 3 FCR 553 are examples – there is every reason why the same care should be taken.
2. The court has overall control of the litigation process and has a clear responsibility to take all necessary measures to ensure that confidential information is not given out as a side-effect of legal proceedings.
3. Disturbingly, this is exactly what happened in this case, which came before me recently. The Father was applying for contact to his three young children. For good reason the Mother's new married name and current address were not to be disclosed. Despite this, the Father was sent the information in inefficiently edited documents. This is not the first case in which such a thing has happened. I will describe what occurred and suggest how it could be avoided in future.
4. In 2004 the parents separated. The Father has spent periods in psychiatric hospitals and in prison. He has a conviction arising from a threat to kill his first wife. He has a conviction for harassing the Mother and is subject to an indefinite restraining order preventing him from contacting her. He is currently facing a charge of harassment in relation to his most recent partner and a charge of breaching the restraining order relating to the Mother.
5. To illustrate the relevance of security in this case, I record that the Father has for some time been registered at Level 3 under the Multi-Agency Public Protection Arrangements (MAPPA) brought in by the Criminal Justice and Court Services Act 2000. In 2005/6 some 47,000 people nationally were labelled as MAPPA Offenders. They are managed at three levels, of which Level 3 is the highest. It is reserved for "the critical few". There are some 1200 offenders in this category nationally, and about 40 in the county in which the Father lives, a county of nearly 1 million people. Whether or not he warrants this level of registration is immaterial for present purposes.
6. After the separation the Mother and children moved into a refuge and then to two supposedly secret addresses.
7. The Father has by one means or another found out where the Mother has been living, including by employing private detectives. He telephoned her to let her know he had found the refuge. When she moved to the first secret address, he found it and turned up with a birthday card for one of the children. The message to the Mother was unmistakeable.
8. The Mother then moved away from the area and remarried, taking her new husband's surname, which happens to be highly unusual.
9. In the course of these proceedings an order was made allowing the Mother's whereabouts to be withheld from the Father. It read:

"Leave to the parties to omit the address and contact details of the mother and/or the children (to include any details which may disclose her whereabouts) from any reports, statements or other evidence and documents filed and served."

10. This direction did not reflect the seriousness of the task in hand. It was not mandatory, nor did it set up any procedure to ensure that identifying information did not leak. In particular it did not allocate responsibility to anyone to ensure that the documents were properly checked.
11. It was particularly needful that such systems should have been put in place, because the next paragraph of the order provided for the collection of a large amount of documentation held by the police, social services and medical services. These documents ran to several hundred pages, and were disclosed in a number of tranches over a period of weeks. The order provided for the documents to be sent to the Guardian's solicitors and distributed by them to the other parties.
12. The most recent documentation was received from the police and the community mental health service about a month before the trial. The police documents were purportedly edited by them before being sent to the Guardian's solicitor. The community nurses' material was unedited and included the notes of a recent case conference.
13. When received by the Guardian's solicitor, the police documents still contained the Mother's mobile telephone number and the case conference minutes contained her new surname and address.
14. The Guardian's solicitor did read the documents, but did not notice that they contained this information (in part because she was not familiar with the Mother's new name) before sending it on to the solicitors for the Mother and the Father. Those solicitors did not check it before sending it on to their clients.
15. At the time the Mother was pregnant with her sixth child and had been admitted prematurely to hospital. One night while she was there, she received a telephone call from the Father on her mobile phone at 3.30a.m. She was shocked.
16. Next, the Father filed a statement (drafted by his solicitor) in which he several times referred to the Mother by her new surname. It was only by reading the statement that the Mother learnt that he now knew her name as well. Although the damage had already been done, the Father's solicitor should undoubtedly have notified the other parties as soon as the error came to light.
17. Overall, the careless distribution of documents gathered for the purposes of litigation has amounted to a gross breach of the Mother's right to respect for her private and family life.
18. In order to avoid repetition of instances of this kind, I have bought the circumstances of this case to the attention of the President of the Family Division, who has approved the following statement by way of future guidance.
19. Wherever sensitive confidential information is to be protected, the following procedure should apply:

(1) The court should identify that a case falls into this category and make a clear statement that special restrictions will apply.

(2) A direction should be given that information of a clearly specified kind shall not be contained in any document filed, gathered or circulated in the proceedings. It is insufficient to allow the information to be withheld.

(3) In considering whether to order documentary disclosure, the court should bear in mind the risk that confidential information may inadvertently be compromised, and avoid making unnecessarily wide orders. It is notoriously burdensome to edit large amounts of documentation accurately and mistakes are easily made.

(4) The chain of possession should be spelled out. The documents should in the first instance be gathered by one appropriately selected party and only released once they have been carefully checked.

(5) Responsibility for the process should be given to one or more named individuals. The Guardian's solicitor, where there is one, may be the obvious candidate. The solicitor for the party who wishes to withhold the information might well be given the opportunity to check the edited documents before they go to the party from whom the information is to be withheld. A timetable can be imposed to avoid delay.

(6) There should always be a second editor where there is a significant volume of material to be edited, or where the potential consequences of inadvertent disclosure are serious.

(7) The editing/checking process should be carried out by someone who knows the details of the case and the importance of the task. It is not an administrative task that can be delegated. Where appropriate the person(s) carrying out the task should be identified by name ('AB') rather than by title ('the Mother's solicitor').

(8) The editor(s) should know exactly what they are trying to protect. It is obviously not sufficient to say 'the mother's name and address' if the editor does not know what they are.

(9) The procedure should be tailored to the circumstances of the case.