Strand, London, WC2A 2LL
B e f o r e :
|In the matter of G (A Child)|
Ms Kate Wilson (instructed by Laceys Solicitors llp) for F (G's father)
M (G's mother) appeared in person assisted by a McKenzie friend
BB (G's half-brother) appeared in person
Hearing dates: 19-20 October 2017
Crown Copyright ©
Sir James Munby, President of the Family Division :
i) In October 2016 I made an order permitting B to have copies of Singer J's judgment and of the reports of three experts referred to in the judgment. This was on the basis of an undertaking by B not to disclose the documents to anyone, except his legal advisers, without the permission of the court.
ii) In July 2017 I made an order removing G as a party.
iii) In the same order I gave directions with a view to BB being notified of the proceedings.
Before proceeding further, I need to explain my reasons for having made these orders.
" The starting point, in the particular circumstances of this case, is that the State is no longer involved with Mr and Mrs Ward and their family. The care proceedings came to an end without the making of any order. The local authority does not have parental responsibility for William and he is not a ward of court. The only persons with parental responsibility for him are Mr and Mrs Ward. Insofar as the disclosure of information about a child of William's age involves an exercise of parental responsibility then it is for Mr and Mrs Ward to exercise that responsibility, not the court or any other public authority. There are no grounds for any interference by the State – whether the State in the guise of the local authority or the State in the form of the High Court – with the exercise by Mr and Mrs Ward of their parental responsibility. No one has made any application for a specific issue order. Mr and Mrs Ward have not sought the assistance of the court in the exercise of their parental responsibility: compare Re B; X Council v B (No 2)  EWHC 270 (Fam),  1 FLR 1460, at para .
 Accordingly, in my judgment, so far as concerns any decision as to whether or not it is in William's interest for any of this material to be put into the public domain, and if so how and for what purpose, the decision is one for Mr and Mrs Ward. It is a matter for them. And it is for them, not the court, to assess the wisdom or otherwise of what they are proposing to do: Re B; X Council v B (No 2), at para [20(iv)]."
"(i) The court has a discretion whether to disclose information contained in its own file to the applicant.
(ii) In considering whether or not to exercise that discretion the court should have regard to all the circumstances of the case and should exercise its discretion justly.
(iii) The public policy of maintaining public confidence in the confidentiality of adoption files is an important consideration.
(iv) The duration of time that has elapsed since the order was made, and the question of whether any or all of the affected parties are deceased, are important considerations.
(v) The nature of the connection between the applicant with the information sought from the court file is an important consideration.
(vi) The potential impact of disclosure on any relevant third parties, and any safeguards that could be put in place to mitigate this, is an important consideration."
"'the protection of … medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general."
Secondly, that if there is to be disclosure without the consent of the patient there must be what in Z v Finland, para 103, the court referred to as "effective and adequate safeguards against abuse."
i) It should not be assumed that B's Article 8 rights are engaged in relation to all the documents to which he seeks access. The mere fact that his mother, M, and half-sibling, G, were parties to the proceedings and that the documents relate to them is not, of itself, sufficient to mean that all their contents relate to his life.
ii) B's desire to understand the proceedings, the basis for Singer J's findings, to investigate the methodology, and to understand his family's history, do not meet the requirement that the consequential interference with F's, G's (and others) Article 8 rights must, in the sense in which these expressions are used in the Strasbourg jurisprudence, be necessary and proportionate. (a) B's connection with the proceedings is far more remote than either F's or G's – so that the documents will, by definition, be more concerned with their private and family lives than with his. (b) Given the context – the prevailing culture – at the time Singer J heard the proceedings and gave his judgment, F would have had a reasonable expectation that the privacy of the case file would be maintained. (c) Given the material which has already been made available to him, B does not need to read more documents to understand his family life. (d) It was the decision of Singer J which led to some impact on B's life and the reasons for that decision are contained in a judgment (already disclosed to B) that is detailed and shows why Singer J decided as he did. It is illogical to contend that combing through the documents with a view to seeing whether either the experts or the judge was wrong will help B to understand his family life. (e) In any event it is unlikely that the exercise will in fact enable B to investigate the methodology of the experts. (f) Likewise, documents not relied upon Singer J, and which therefore did not affect his decision, cannot have impacted on B's life.
iii) B cannot pray in aid any specific public interest considerations; his application is not about Article 6, open justice or general public confidence in the family court system. On the contrary, and weighing in the scales against his application, is the public interest in maintaining the confidentiality of the proceedings so that users of the family courts may have confidence that non-parties will not be given access to the files in their cases without compelling justification.
iv) The lack of merit in B's application can be seen by contrasting it with cases where access to documents has been given. In this context Ms Wilson refers to the various authorities cited and discussed in Re C (A Child) (Application by Dr X and Y)  EWFC 79,  1 FLR 82, paras 32-48.
i) If M's application is granted, F will lose control over when and in what circumstances his daughter G learns the distressing details of their family history – matters which he would wish to be able to disclose to her at a time and in a manner which will have the least detrimental impact on her.
ii) It is important to have regard to Singer J's assessment of what disclosure there should or should not be.
iii) M's proposals in relation to anonymity, which are inadequately thought through, are unlikely to be effective, will not prevent the sense of intrusion which F and G will feel from seeing their lives discussed publicly, and will in effect force F's hand as to what and when he tells G.
iv) The reality is that, in relation to G, M cannot achieve her stated objective of telling her children her side of the story and showing them that Singer J was wrong, without G being told about the proceedings. If, and this is the basis of her application, her account of events is anonymised, M is on the horns of a dilemma. Either G does not become aware of what has happened – in which case M's objective is not achieved – or F's hand is forced. So, unless F's hand is to be forced, the point of M's application in large part falls away.
v) In relation to M's suggestions that there may have been a miscarriage of justice, it is important to bear in mind that M accepted that G should live with F – which undermines her claim to have suffered a miscarriage of justice; that Singer J's decision in relation to whether there should be contact was not affected by the expert evidence which she now wishes to challenge; and that in significant part Singer J's reasoning was based on his assessment of M as a witness. There is therefore no connection between the outcome of the proceedings and the arguments M relies upon. Moreover, M has never sought to challenge any of Singer J's findings by way of appeal.
vi) Although the court, as is well recognised, must be particularly alert not to close off avenues for those who contend there has been a miscarriage of justice, and particularly sensitive not to silence, or to be perceived to be silencing, someone who claims to be the victim of failure in the court process, the court must still apply the necessary intense focus on all the Convention rights being asserted. Thus in evaluating the impact on M of not permitting publicity and, in comparison, the impact on the other private rights engaged of permitting publicity, the court must scrutinise the basis upon which it is said that there has been a miscarriage of justice and the extent to which failings in the process did or did not affect the outcome – here, as we have seen, Ms Wilson's argument is that they did not – and must have regard to the fact that, if publicity is permitted, M's account will inevitably be one-sided, leading to partial reporting. The court would have to give the same freedom to comment to F as to M, not something he seeks – indeed, he is horrified, both for himself and for G, by the prospect of his family life being discussed in public – but which he might feel driven to by the need to 'set the record straight.'
i) The starting point is that M is unable to point to any significant change in the circumstances, beyond the mere passage of time, since she gave the undertaking to Singer J and since he expressed himself in the way I have referred to in paragraph 9 above. She did not seek to challenge his findings at the time. What has since happened to justify her doing so now, and, moreover, in public? She points, as we have seen, to what she says is "new evidence," but that material (which dates back many years) is untested and, as she accepts, will now never be tested in court.
ii) M herself recognises that the welfare of her children is "paramount" and that there is "far too much sensitive information within [the] documents to chance their security," yet the anonymity measures she proposes are unlikely to be effective and, even if effective vis-à-vis the world at large, will not shield F and G (if she makes the link) from the detrimental effects on them – and the same in principle goes for B and BB – of being exposed to public discussion of what, I repeat, is some extremely painful and distressing family history.
iii) In relation to G, there is the dilemma I referred to in paragraph 49(iv) above. More generally, it must, I am satisfied, be for F and not for M to decide when, in what circumstances, and how G, whether still a minor or not, should be introduced to this part of her family history.
iv) For all the reasons I summarised in paragraph 49(v), the arguments based on an alleged miscarriage of justice carry much less weight in the particular circumstances of this case than ordinarily they would.
Note 1 In saying this, I recognise that in 2002 many judgments were reported in law reports without being published on BAILII, whereas nowadays almost every judgment which is reported in a law report is first published on BAILII. But the essential point remains. [Back] Note 2 At a very late stage during the final hearing, M revealed that she still had in her possession her copy of the trial bundle. No-one sought to examine it at that stage or to suggest that I should: cf, A v Ward  EWHC 16 (Fam),  1 FLR 1497, para 116. [Back]
Note 1 In saying this, I recognise that in 2002 many judgments were reported in law reports without being published on BAILII, whereas nowadays almost every judgment which is reported in a law report is first published on BAILII. But the essential point remains. [Back]
Note 2 At a very late stage during the final hearing, M revealed that she still had in her possession her copy of the trial bundle. No-one sought to examine it at that stage or to suggest that I should: cf, A v Ward  EWHC 16 (Fam),  1 FLR 1497, para 116. [Back]