England and Wales High Court (Family Division) Decisions

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Cite as: [2016] EWHC 910 (Fam)

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

		Neutral Citation Number: [2016] EWHC 910 (Fam)
		Case No: BM15C00304

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: I (A CHILD)

Priory Courts
33 Bull Street
Birmingham
B4 6DS

18th April 2016

B e f o r e :

THE HONOURABLE MR JUSTICE HOLMAN
Sitting in private
____________________

Re: I (A child)

____________________

Transcribed from the Official Tape Recording by
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____________________

Solicitor for the local authority: Mr Matisa Krumins
Counsel for the child: Mr Andrew Bainham
Hearing date: 18th April 2016
____________________

HTML VERSION OF JUDGMENT - APPROVED
____________________

MR JUSTICE HOLMAN:

The essential purpose of this short judgment is to record the events of today and my reasons for making the order which I now make. The effect of that order will be that the application which I began hearing earlier today will be heard again from scratch by a different judge on notice to all parties. The essential factual situation is as follows. There are care proceedings currently before the court here in Birmingham in relation to a young man, now aged 15. He was living with his father until last December when he began living in foster care. There is currently an interim care order in place, and the care proceedings have been listed for final hearing before an allocated circuit judge here in Birmingham on Tuesday, 17^th May 2016.

Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to his guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year-old child who is in their care. They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.

The local authority therefore consider that they are under a duty to reveal or disclose the information to both parents; and they have said that they will do so unless prevented by the court, or at any rate unless the court indicates that in its view the local authority are not, on the facts and in the circumstances of this case, under a duty to disclose the information. That issue having arisen between the local authority and the guardian, the guardian issued an application dated 18^th March 2016 in form C2. She did in fact name the local authority and both parents as the respondents to the application in paragraph 1 of it. The relief sought in the application is, "An order preventing the local authority from disclosing this information". The application form goes on to ask that, "In order that the other parties are not made aware of this application or that it is being heard, we would ask that..." it be heard before the scheduled next hearing in this case and that it "...be dealt with privately or that the court makes some other arrangement to ensure that the other parties are not put on notice."

That application did in fact come before the allocated circuit judge on 21^st March 2016 at a "private" hearing at which neither of the parents, nor the stepmother, were present or represented and of which they had no notice. On that occasion, the judge essentially did two things. First, she made an interim order that the information in point was not to be disclosed. Second, she fixed a further hearing before myself here today on 22^nd April 2016. So that application in form C2 which the guardian had issued on 18^th March 2016 came on before me here today. The only people present in court today or having any knowledge of the application are the guardian and the local authority and their advocates. I decided to hear the application in private rather than in public, so as to preserve the confidentiality of the information. In preparation for the hearing today, both advocates prepared very helpful position statements or skeleton arguments, and have assembled various authorities.

It is right to record that for an appreciable period of time this morning, perhaps about an hour and a half, we had a dialogue as to some of the issues raised by the substantive application and the nature of the information actually in point, and we considered a number of well-known authorities on the duty of disclosure and when an exception to disclosure may be made. It began increasingly to appear to me that there was considerable difficulty in dealing with this matter here today when the other respondents were not on any notice whatsoever of the existence of the application, even if they could not at this stage be told the nature of the information in point.

This led to consideration of two authorities in particular. The first is a decision of the Court of Appeal in Re: M (Disclosure) [1998] 2 FLR 1028, which itself refers with approval to the decision and guidance of Johnson J in Re: C (Disclosure) [1996] 1 FLR 797. The other authority considered today is that of the House of Lords in Official Solicitor to the Supreme Court v K and another [1965] AC 201, which makes reference at pages 215 B and 226 A to C to a practice in situations such as this of counsel being informed of the actual nature and content of the confidential information, on terms, or on the basis, that counsel will not communicate the actual nature and content of the confidential information to his or her solicitor or client without the permission of the court. In the much later authority of Re: M (Disclosure) that practice is also referred to with apparent approbation by Lord Justice Thorpe at page 1031 G.

At this point it is necessary to record a further twist in this particular case which does, or may, add a further layer of complexity. I have been told today by the guardian, Miss Tracey Cross, that her previous counsel (not, I stress, Mr Andrew Bainham, who appears on behalf of the guardian today) had mentioned the factual circumstances and the problem in this case to a colleague in his chambers, without either he or that colleague realising that the colleague had been, or was going to be, instructed on behalf of the father in these proceedings. It thus appears (although this will need further clarification from the two counsel concerned) that, inadvertently, counsel who is now instructed on behalf of the father in these proceedings may already be in possession of the confidential information in point. If the facts are as I have just summarised them, then some quite difficult questions may arise in relation to the professional duties of counsel to his client on the one hand, and the aura or carapace of candour and confidentiality which may attach on the other hand when one barrister discusses a knotty problem with a colleague.

In all events, it seems to me, having regard to the clear authority of the Court of Appeal in Re: M (Disclosure), that I simply cannot with propriety substantively conclude today's hearing or rule upon the application which the guardian has issued. If, in another situation, the local authority and the guardian were both in agreement that the information in question was not such that there was any duty to disclose it (for instance, if both agreed that it was too unimportant or trivial to require disclosure), then non-disclosure might indeed follow without any involvement at all on the part of the court. But the situation in the present case is that a dispute has arisen between the guardian and the local authority with regard to disclosure of this information, and a formal application has been made by the guardian to the court upon which the court is required to rule.

If, in those circumstances, I were simply to rule on this matter today, without any knowledge whatsoever on the part of the parents and their legal advisors, then it seems to me that the court would risk complicity in a deception, not as to the substance of the information itself (which the law clearly establishes may in certain circumstances be withheld), but as to procedures which have taken place in the course of the set of proceedings with simply no notice at all to the respondents. Whilst Lord Justice Pill said in Re: M (Disclosure) at page 1033 F that he would not exclude the possibility that hearings of this kind may be held ex parte, he continued that, "I would hope that such situations would occur only rarely". He then went on to give an example which is far removed from the facts and circumstances of the present case.

I am deeply conscious that whenever disclosure issues of this kind arise there is an inherent problem once any notice is given. The problem is that if persons such as parents know that there is some information which it is sought, and may perhaps be ruled by the court, not to be disclosed, then "conspiracy theory" and imaginings may inevitably take over. There is indeed a risk in this sort of situation that a respondent, knowing that some information has been withheld from him or her, may start imagining that the information is more grave than the information actually is. It seems to me, however, that that is a risk that is simply inherent in a situation of this kind, and that the authority of Re: M (Disclosure) clearly requires that, on the facts and in the circumstances of the present case, notice is given. For those reasons, I will accordingly adjourn this whole hearing to start afresh on a later day of which notice is given to the three respondents and their legal advisors.

Mr Bainham asked that I should list it part-heard before myself in order to maintain judicial continuity. For my part, however, I consider that it should be heard by any other judge except myself. I have now heard quite considerable argument, and indeed ventured some provisional views on the substance of the matter. It seems to me that if there is now to be a hearing on notice to the respondents, it should be a hearing which genuinely starts afresh, before some judge who comes to the matter with a fresh mind and is influenced only by arguments and material (apart from the information itself) which all parties and their advisors are enabled to hear and read. So, I shall direct that it is not heard again before myself. Unfortunately, there is no High Court Judge available here in Birmingham between now and the date fixed for the substantive care hearing, and so this discrete issue will have to be heard in London on a date which has now been fixed.

The order today will in terms draw attention to the relevant passages in the authority of Official Solicitor to the Supreme Court v K and another and the reference to that authority in Re: M (Disclosure) at page 1031 G. If counsel for any given one of the respondents is willing to give, and is able to give, a written assurance that he or she will not, without the further permission of the court, reveal or disclose the information in point to his or her client, then that counsel may be supplied in advance of the hearing with the whole slim bundle which is before me today, which contains the information in point and such evidence as there is in relation to it. That, however, will be a matter for the decision of each respective counsel. If he or she is unwilling or unable to give that assurance, then he or she cannot for the time being be told the information.

I am deliberately not naming in this judgment the two counsel who had the conversation to which I have referred. I do not know whether the counsel who was party to that conversation, who is or was acting on behalf of the father, will be able personally to attend the hearing which has been fixed in London, but it is essential that there is some form of evidence or material, if he cannot attend that hearing, which makes quite clear the extent of his existing knowledge and what use, if any, he has made, or still intends to make, of any information so imparted.