[2010]JRC090
royal court
(Samedi Division)
18th May 2010
Before : |
Sir Philip Bailhache, Kt., Commissioner, sitting alone. |
Between |
C and D (acting through their Guardian Julie Stacy) |
Applicant |
And |
(1) The Minister for Health and Social Services |
|
|
(2) A |
|
|
(3) B |
Respondents |
IN THE MATTER OF H
Advocate C. R. G. Davies for the Guardian.
Advocate E. L. Hollywood for the First Respondent.
Advocate P. S. Landick for the Second Respondent.
Advocate M. J. Haines for the Third Respondent.
judgment
the commissioner:
1. This is an application by the Guardian of C and D for the disclosure into these proceedings of certain documents which relate to different public law proceedings concerning the children of B and A who are, respectively, the grandfather and grandmother of C and D.
2. There are four documents in question. The first document is a report dated June 2009, by Andrew Kawalek which is a psychological assessment containing material relating to E and siblings, and the dynamics within the family. The report specifically refers to C and D and comments on the parenting which they have received and makes certain recommendations.
3. The second document is an assessment dated December 2009, by the Lucy Faithful Foundation, which focuses upon the ability, or otherwise, of A to protect her children from harm. It also touches upon the relationship between E and F, the first and second respondents in these proceedings.
4. The third document is the report and assessment of the Guardian to the minor children in the earlier proceedings. The report sets out the contact between different members of the H family and the chemistry of the family as a whole. The author, Miss Tracey Goode, has indicated her support for the Guardian's application.
5. The fourth document is a report by ICIS in 2005, which was the first psychological assessment of the family to be undertaken. It is a comprehensive report and deals extensively with complaints made by E against the father, B.
6. The application by the Guardian is supported by the Minister, but opposed by the grandparents, B and A. Counsel for A has submitted that, if disclosure were to be granted, frankness in children's cases would be discouraged, and he contended, furthermore, that there was sufficient information in relation to C and D before the Court to do justice in the matter. The experts, in his submission, had other material upon which they could rely to assist them to make their recommendations. Counsel for A suggested that it might be open to the Court, if his primary submission was not upheld, to order disclosure of the reports only in part, that is to say those elements of the reports which related to E and the children.
7. Counsel for B submitted that disclosure would involve considerable prejudice to his client, because the reports were deeply personal in the sense that they treated with the allegations made against him, not all of which had been upheld. Many matters in the reports covered allegations in relation to which he had not been convicted. It is, however, a matter of record that he has been convicted of indecent assaults upon E and G and that he is currently serving a term of imprisonment in relation to those offences.
8. Rule 25 of the Children (Jersey) Rules 2005 gives the Court a discretion to order disclosure. That discretion must, of course, be exercised judicially. I have been referred to a number of authorities, and in particular to a short passage in the judgment of Mr Justice Munby in Re X (Disclosure of Information) [2001] 2 FLR 440 which contains the following at paragraph 23:-
"The exercise of the judicial discretion, which arises in these cases, requires consideration of a very wide range of factors. In the final analysis it involves a balancing exercise in which the judge has to identify, evaluate and weigh those factors which point in favour of the disclosure sought against those factors which point in the other direction."
9. Counsel for the Guardian referred me to a case before the English Court of Appeal, Re EC (Disclosure of Material) [1996] 2 FLR 725, where the Court laid down a number of factors which were considered to be relevant to the exercise of discretion. Lord Justice Swinton Thomas stated at page 9 of the report placed before me:-
"In the light of the authorities the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance because the importance of each of the various factors will, inevitably, vary very much from case to case-
(i) the welfare and interests of the child, or children, concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way this will be a very important factor.
(ii) the welfare and interests of other children generally.
(iii) the maintenance of confidentiality in children's cases.
(iv) the importance of encouraging frankness in children's cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of section 98 is to encourage people to tell the truth in cases concerning children and the incentive is that any admission will not be admissible in evidence in a criminal trial, consequently it is important in this case, however, the added incentive of guaranteed confidentiality is not give by the words of the section and cannot be given.
(v) 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.
(vi) the public interest in the prosecution of serious crime and the punishment of offenders including the public interest in convicting those who have been 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.
(vii) gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial this will militate against a disclosure order.
(viii) the desirability of cooperation 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.
(ix) in a case to which section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
(x) any other material disclosure which has already taken place."
I turn to apply the material elements of those principles to this case.
10. Having taken careful note of all the submissions made by Counsel, I have no hesitation in concluding that the application ought to be granted. It does not seem to me that frankness or the maintenance of confidentiality in children's cases will be affected in the slightest by the disclosure of these documents. So far as the interests of the children concerned in the earlier proceedings are concerned, that is to say the siblings of E, no particular difficulty has been advanced which might prejudice their position. So far as the grandparents, A and B, are concerned, they have, as I have said, both opposed this application. Counsel for A was not able to direct me to any particular prejudice which would be suffered by his client other than the general principle of privacy, which would clearly be breached, to an extent. So far as B is concerned, it is true that there may well be matters in the reports which he would prefer not to see the light of day. The reality is, however, that the disclosure would not be far reaching and that most of the parties to these proceedings have already seen the documents in question. Indeed the Guardian herself has had access to the reports. The only result of refusing this application would be to inhibit the Guardian in the reference which she might otherwise be able to make, to the reports which were used in the earlier proceedings. So far as these children, C and D, are concerned, it seems to me very much in their interest that those who are advising in the matter should be as fully informed as is possible as to the background concerning their grandparents and their mother and her siblings.
11. The application does not, in my judgment, truly involve disclosure outside the family. No compelling reason, apart from the general principles of confidentiality and the encouragement of frankness, has been advanced as to why the disclosure of these documents should not take place. On the other side of the coin it seems to me very much in the interests of these small children that the experts and the Court should be fully informed as to the broader family background.
12. The application is accordingly granted, subject only to this qualification. I have been told that the author of the Guardian's report and assessment in the earlier proceedings has consented to the release of her report. Counsel was not, however, able to confirm that the authors of the other reports had consented to their disclosure. It seems to me unlikely that any of them will wish to object to the disclosure, but I order that the disclosure should not take place to the Guardian and her legal adviser for 14 days. I request Counsel for the Minister to use her best endeavours to contact the authors of these reports and to inform them of this judgment and the proposed disclosure of their reports so that, if thought fit, any of them may make an application to the Court.
Authorities
Children (Jersey) Rules 2005.
Re X (Disclosure of Information) [2001] 2 FLR 440.
Re EC (Disclosure of Material) [1996] 2 FLR 725.