Care Proceedings - application by the Minister for disclosure of a psychological assessment.
Before : |
J. A. Clyde-Smith, Commissioner, sitting alone. |
Between |
The Minister for Health and Social Services |
Applicant |
And |
C |
First Respondent |
And |
E |
Second Respondent |
And |
F |
Third Respondent |
And |
G |
Fourth Respondent |
And |
H |
Fifth Respondent |
IN THE MATTER OF F, G AND H (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate D. C. Robinson for the Applicant.
Advocate S. M. Le Cocq for the Third Respondent.
Advocate R. E. Colley for the Fourth Respondent.
Advocate B. J. Corbett for the Fifth Respondent.
judgment
the commissioner:
1. The Minister applies for leave, pursuant to Rule 25 of the Children Rules 2005 ("the Children Rules"), for a psychological assessment dated 26th March, 2009, prepared by Lisa Wolfe, a chartered psychologist, ("the psychological assessment") for the purpose of care proceedings in relation to the third, fourth and fifth respondents (in respect of which final care orders have been made) to be disclosed into contact proceedings involving their niece.
2. The third, fourth and fifth respondents are part of a larger family comprising seven children. The only document that I have in relation to the now concluded care proceedings is the psychological assessment and I have relied upon that for the purpose of setting out the following brief summary of the background which I think is necessary in order to put the application in context.
3. The family were known to the Children's Service for some twenty years. There were allegations of domestic violence, displays of sexualised behaviour by one of the children, a lack of cooperation with the Children's Service, descriptions of the home as being in a revolting state and of the children running riot and an allegation by one of the children of sexual abuse by the father, which was later retracted. The mother was diagnosed with cancer and died on 10th September, 2006, with the children being left in the sole care of the father.
4. In September 2008, another child made allegations of sexual abuse by the father. As a consequence, the father was taken to prison, the complainant removed from the Island to an unknown location for her protection and emergency protection orders were obtained in relation to the third, fourth and fifth respondents. Exclusion Orders (with powers of arrest) were made against the older children on the grounds that they had been groomed by the father not to cooperate with the Children's Service and such orders were required to prevent threats or reprisals by the older children which might in turn prevent further disclosures by the third, fourth and fifth respondents, a process the psychological assessment states the older children found traumatic. All of these events took place within a day and close to the second anniversary of the mother's death.
5. Lisa Wolfe was instructed to undertake a comprehensive psychological assessment of all of the family members and to answer a range of questions pertaining to psychological functioning, risk analysis, placement (whether with family members or outside the family) and contact. It was prepared at a time when the allegations against the father had not been proved and she complains of a material lack of disclosure to her. In due course, the father pleaded guilty and on 24th July, 2009, was sentenced to 4 years' imprisonment for indecent assaults upon the child and a friend of hers. On 4th November, 2011, he was sentenced to 6 months' probation for breaking the restraining order that had been placed upon him.
6. The psychological assessment was never tested in Court as final care orders in respect of the third, fourth and fifth respondents were not contested. Those final care orders were made on 14th May, 2009, 30th October, 2009, and 14th February, 2011, respectively.
7. The psychological assessment is lengthy, being just under 100 pages. It is set out in sections as follows:-
(i) A summary of the previous concerns in relation to the family.
(ii) A description of the method of assessment.
(iii) A summary of recent concerns leading to the then current care proceedings.
(iv) Psychological assessments of the father and each of the seven children.
(v) Answers to specific questions posed in her instructions.
8. As stated above, the contact proceedings concern a niece of the third, fourth and fifth respondents. Her father is one of the older of the seven children. At the time of the psychological assessment, he was 20, so he is now 24.
9. In an effort to avoid the use of initials, I will, from this point, refer to the third, fourth and fifth respondents and their siblings together as "the children" (although all but one are now adult), to the father of the children (who is the first respondent) as "the grandfather", to the niece as "the granddaughter", to her father as "the father" and to her mother as "the mother".
10. The mother and father (who were partners) separated and on 7th February, 2013, the father made an application for unsupervised contact with the granddaughter.
11. The application is opposed by the mother on the grounds that she has concerns about the father's ability to keep the granddaughter safe and protected from his extended family. The father has committed no offences against children and has no restrictions upon his contact with them, but as stated above, the grandfather has committed serious sexual offences against one of the children and the mother has concerns about his high level of influence on the father and the other children. She feels that the father may allow contact between the grandfather and the granddaughter (despite a restraining order being in place) and that the granddaughter may be placed at risk of harm.
12. On 20th March, 2013, the Registrar ordered the Minister to disclose to the Court for onward transmission to the parties and the JFCAS officer any documentation regarding the granddaughter, any information regarding the father's relationship with the grandfather and the dynamics of the paternal family as they relate to the father and gave leave to the Minister to make representations in that respect. On 3rd April, 2013, the Minister having been granted leave to be heard, the Registrar ordered a meeting of the advocates representing the Minister and the parties and the JFCAS officer to consider what information was necessary, reasonable and proportionate for the purpose of disclosure and the appropriate mechanism for obtaining consent or an order for its release.
13. At that meeting, it was agreed that certain documentation would be disclosed by consent and that it would be helpful for the proper determination of the proceedings for disclosure of the psychological assessment to be made. The Registrar therefore ordered by consent that the Minister apply to this Court for leave, pursuant to Rule 25 of the Children Rules, to permit the disclosure of the psychological assessment into the contact proceedings and to the mother, father and the JFCAS officer.
14. Eleanor Green of JFCAS has been appointed as welfare officer in the contact proceedings. She prepared a brief report and gave evidence in respect of this application for disclosure. In that report, she advised as follows:-
"4. It is my understanding that the [psychological assessment] specifically related to the whole family and included a detailed analysis of family dynamics, function and risk assessment of the various members and the impact of the paternal grandfather's influence upon them. The Family Registrar needs this information to inform the Court proceedings. Mr Robert Tucker, (a specialist in the field of sexual offending behaviours and risk assessment), has been approached to undertake an updated assessment and he considers that this report would help clarify the historic issues and nature of family functioning.
5. I understand the concerns about confidentiality, however these issues are being disclosed within family proceedings brought by a member of the [paternal] family. This report is not being disclosed into the public domain, but remains within the family structure. It will assist the current assessment of [the father's] application and perhaps aid the creation of a safe, long-term pattern of contact. Whilst data protection is important, where there are issues regarding the safety of a child, these are paramount. I consider this report necessary information needed to safeguard the welfare of [the granddaughter] in the current proceedings. Without it we run the risk of a Court order being made which may leave her at risk of harm. This would clearly be unacceptable to all concerned and must be avoided if at all possible."
15. The Minister filed her C2 application form seeking disclosure of the psychological assessment on 14th May, 2013. Of the third, fourth and fifth respondents, only the fifth respondent is now under 18 and therefore still a "child" for the purposes of the Children (Jersey) Law 2002 ("the Children Law"). He is 15 and Mrs Corbett was satisfied that he was sufficiently mature to be able to instruct her.
16. The father is aware of the application, having been a party to the consent order seeking disclosure. As to the other three older children, one has consented to disclosure. Service on another (the second respondent) was dispensed with, pursuant to Rule 11(6)(a) of the Children Rules, because the Minister was unaware of his address. At the hearing, it transpired that the respondents represented by Miss Le Cocq and Mrs Corbett were in contact with him and I will return to this later.
17. Advocate Nicolle represented the remaining older child who had applied to be joined to the proceedings. She and her client had not seen the psychological assessment and the Minister therefore applied for and was granted leave to provide a copy, so that she could take her client through it, before a decision was made as to whether to continue with the application to be joined. Advocate Nicolle informed me that her client found the whole process distressing and although the client did not want the psychological assessment disclosed, she felt unable to continue with the application.
18. The grandfather has informed the Children's Service that he opposed disclosure but he was not present for the application.
19. Lisa Wolfe has consented to the release of her report subject to the requisite order by the Court being made.
20. Mr Robinson placed reliance on the decision of the Court in In the matter of H [2010] JRC 090, a case which concerned disclosure into public law proceedings concerning two children of documents held by the Court in relation to different public law proceedings concerning the children of their grandmother and grandfather - in effect, a similar family structure to that with which I am concerned. One of the reports set out the contact between and the chemistry of the family as a whole. The grandparents opposed disclosure, because:-
(i) Frankness in children's cases would be discouraged.
(ii) There was sufficient information in relation to the children for the Court to do justice.
(iii) The experts had other material upon which they could rely to assist them in making their recommendations.
(iv) The grandfather said that disclosure would involve considerable prejudice to him, because the reports were deeply personal in the sense that they dealt 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, although it was a matter of record that he had been convicted of indecent assaults upon two members of the family, and was currently serving a term of imprisonment.
21. Quoting from paragraphs 8 and 9 of that judgment:-
"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 given 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."
22. Applying those principles to the facts in that case, Sir Philip Bailhache, Commissioner, granted the application concluding:-
"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."
23. Mr Robinson also referred me to the decision of the Supreme Court in In the matter of A (a child) [2012] UKSC 60. In that case, X had made an allegation of serious sexual assault when she was a child by the father of a child A, who was the subject of contact proceedings. X was adamant that she did not want any action to be taken over her allegations or her identity revealed to anyone. There was medical evidence as to the potentially serious effect disclosure by the local authority of the information that they had in relation to her allegations into the contact proceedings would have on X. The local authority therefore claimed public interest immunity for their records relating to X and her allegations because of the public interest in maintaining the confidentiality of information given to the authorities responsible for protecting children from abuse. In her judgment at paragraph 16, Lady Hale noted that public interest immunity is not absolute:-
"The public interest in maintaining confidentiality must be balanced against the public interest in a fair trial, according to principles which have developed since the landmark case of Conway v Rimmer [1968] AC 910 required the court to strike that balance."
24. The principle in children's cases is to protect the interests of the child who is the subject of the proceedings (in that case A), but the authorities reviewed by Lady Hale did not address the source of power to withhold information in the interests of a third party (in that case X). Several Convention rights were found to be in play. All three parties to the contact proceedings, namely the father, the mother and A had an Article 6 right to have a fair trial in the determination of their civil rights. The right to fair trial is absolute, but the question of what is fair may depend upon the circumstances of the case. They also have Article 8 rights to respect for their private and family lives. X had an Article 8 right to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.
25. The Supreme Court found that an order for disclosure would undoubtedly be an interference with X's right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. Protecting her rights was a legitimate aim, but the means chosen had to be proportionate. Having concluded that some form of closed material procedure would not meet the minimum requirements of a fair hearing in that case, she concluded at paragraph 35:-
"The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, X's privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail."
26. Pointing out that I had no evidence from the third, fourth and fifth respondents as to the distress disclosure of the psychological assessment might cause them, let alone medical evidence, Mr Robinson submitted that none of the children would be prejudiced by its disclosure other than in respect of their privacy, which would be breached "to a small degree". That had to be weighed against the grave injustice that would result from non-disclosure. There would be an infringement of confidentiality but the application does not truly involve disclosure outside the family. There might, he said, be matters in the psychological assessment which the third, fourth and fifth respondents would prefer to hide away, but the reality was that disclosure would not be far reaching and the father, in any event, had knowledge of the report. Refusing the application would inhibit the production of a fully informed assessment by the appointed expert Mr Tucker and it was very much in the granddaughter's interests that the experts and the Court in the contact proceedings should be completely informed as to the broader family background.
27. The third, fourth and fifth respondents vehemently opposed any disclosure of the psychological assessment into the contact proceedings, but as a fall-back position submitted that disclosure should be made on a very restricted basis to Mr Tucker alone.
28. Whilst the position of each of the third, fourth and fifth respondents was described in different terms, it is fair to say that the events which led to the implosion of the family had a devastating effect upon them, from which they were struggling to emerge and this application came at a very bad time for them. Miss Colley pointed out that all of the children are likely to have their own children in the future in respect of whom there may be proceedings; they faced the prospect therefore of this happening again and again. Her client was scared that this would never end.
29. They questioned the relevance of the report, representing, as it did, a snapshot of the family at a particular point in time that was now historical. The fact that the psychological assessment had never been tested in the care proceedings rendered it, they said, of little evidential value. It was deeply distressing to them that this report should be disclosed into other proceedings and in particular, to the mother.
30. Most of the cases on disclosure related to disclosure of documents from care proceedings into criminal proceedings; Re EC, upon which Bailhache, Commissioner, had relied in Re H, was just such a case. In Minister for Health and Social Services-v-X Children [2009] JRC 191, the Court was concerned with disclosure of documents out of care proceedings to lawyers who might in the future act for the X children in civil proceedings brought on their behalf. Reference was made at paragraph 6 of the judgment to the judgment of Munby J in Re X (Disclosure of Information) [2001] 2 FLR 400:-
"[17] Before turning to consider these authorities, however, two preliminary observations are in order.
[18] The first is this. Typically, when disclosure is sought of court papers relating to a child involved in family proceedings, the case exhibits three features which, except insofar as possible disclosure to the Criminal Injuries Compensation Authority arises, are wholly absent in the present case. In the typical case - indeed, probably in the vast majority of such cases - what is sought is:-
(i) disclosure of material to some person or agency not directly involved in the family proceedings, that is, to an 'outsider';
(ii) in circumstances where the material is likely to be deployed in some public or semi-public manner - in other words in a manner breaching what Balcombe LJ called in Re Manda [1993] Fam 183, 195E, sub nom Re Manda (Wardship: Disclosure of Evidence (1993) 1FLR 205, 215, the 'curtain of privacy' imposed by the family court for the protection of the child; and
(iii) in circumstances where, as Balcombe LJ pointed out in the same case at 197E, 217, the disclosure cannot be said to be for the positive benefit of the child, and may even be prejudicial to the child."
He went on to confirm:-
"[20] The present case is quite different. What is sought is:
(i) disclosure to persons directly involved in the family proceedings and a limited class of people standing in a close and confidential relationship with them, that is, to 'insiders';
(ii) in circumstances where, except in relation to possible claims to the Criminal Injuries Compensation Authority, there will be no public, indeed no further dissemination, and thus no breach of the 'curtain of privacy'; and moreover,
(iii) in circumstances where the disclosure will be for the positive benefit of the children."
31. The third, fourth and fifth respondents submitted that disclosure here to the mother would breach the "curtain of privacy". Furthermore, disclosure was not for the positive benefit of the respondents. In the case of the fifth respondent, he was still under 18 and therefore a child for the purposes of the Children Law. To the extent that this issue of disclosure could be regarded as a question in respect to his upbringing, then pursuant to Article 2 of the Children Law his welfare was to be the Court's paramount consideration.
32. In essence, the third, fourth and fifth respondents submitted that disclosure would constitute a serious violation of their Article 8 Convention rights to respect for their private and family life and although those rights were not inviolate, disclosure here would be disproportionate.
33. Mrs Corbett raised two ancillary points. Firstly, she submitted that this application by the Minister re-opened the care proceedings, resurrecting the appointment of the guardian (Leonora Green) under those care proceedings. She had not been made a party to this application, but had indicated to Mrs Corbett that she strongly objected to disclosure. In my view, that cannot be right. This application does not re-open the care proceedings in respect of which final care orders have been made, resurrecting the original appointment of the guardian. It was concerned solely with the issue of disclosure of documents out of those now concluded proceedings. The appointment of the guardian in the care proceedings ended when final care orders were made (see the decision of the Court of Appeal in Re D [2011] JLR 220). If any of the respondents to this application were still minors, then consideration could be given to the appointment of a guardian under Article 75 of the Children Law for the purpose of that application. That had not taken place in this case, because the fifth respondent was now nearly 16 and had been deemed competent by Mrs Corbett to instruct her.
34. Secondly, she submitted that since JFCAS had been formed after the coming into force of the Children Rules, its officers are the successors to "welfare officers" and also include non-lawyer appointees under Article 75. It was reasonable, therefore, to conclude, she said, that Rule 25(3) would authorise JFCAS officers appointed under Article 75 in the care proceedings (namely Leonora Green) to disclose any document to the JFCAS officer in the contact proceedings (Eleanor Green). In any event, it was good practice for the officers of JFCAS to be afforded access to the records of the Children's Service relating to any child they represent either under Article 75 or through their appointment as welfare officers. There was therefore no need for the JFCAS officer in the granddaughter's case to be joined in this application for disclosure in order for her to have access to any information relating to the wider family which may be relevant to the granddaughter's welfare.
35. Mrs Corbett accepted that an application under Rule 25 was required in any event for the wider disclosure of the psychological assessment into the contact proceedings. However I doubt whether her submissions can be correct. Rule 25(3) is in the following terms:-
"25 (3) Nothing in this Rule shall prevent the disclosure of any document relating to proceedings by a welfare officer to any other welfare officer unless that other welfare officer is involved in the same proceedings but on behalf of a different party."
36. A welfare officer is defined in Rule 1(1) as follows:-
"welfare officer" means a person to whom reference is made in Article 9(1)(a) or (b) who has been requested to assist in the proceedings."
37. Article 9(1) of the Children Law is in the following terms:-
"9 Welfare reports
(1) In considering any question with respect to a child under this Law the court may require -
(a) a probation officer who is not the child's guardian ad litem; or
(b) the Minister to arrange for -
(i) an officer of an administration of the States for which the Minister is assigned responsibility; or
(ii) such other person (other than a probation officer) as the Minister considers appropriate,
to report to the court, in writing or orally as the court may direct, on such matters relating to the welfare of that child as are required to be dealt with in the report."
38. Leonora Green was appointed guardian in the care proceedings pursuant to Article 75 of the Children Law. She was not appointed to prepare a welfare report under Article 9(1) of the Children Law and was not therefore a welfare officer for the purposes of Rule 25(3). Furthermore, her role as guardian ceased when the care proceedings concluded. She is functus officio and there can be no question of her having the right to disclose documents she may still possess to the welfare officer appointed for the purposes of the contact proceedings without leave of the Court.
39. JFCAS, as welcome a development as it is, has no status under the Children Law or the Children Rules. Its officers will from time to time be appointed welfare officers to assist in proceedings as Eleanor Green has in the contact proceedings or as guardians but I do not think they can be described as successors to welfare officers in this way. As to the more general proposition that pursuant to Rule 25(3) welfare officers appointed in one set of proceedings can disclose documents to welfare officers appointed in another set of proceedings, this did not fall for me to determine but it would be surprising if the confidentiality which attaches to proceedings under the Children Law could be breached in this way. Once disclosed through the welfare officer into the separate proceedings it would be in those separate proceedings for all purposes, bypassing the requirement for leave under Rule 25(1).
40. The welfare officer Eleanor Green has not seen the psychological assessment and the first point to make is that her assumptions as to its contents are broadly correct. I accept therefore that this information is relevant for the purposes of the contact proceedings.
41. Secondly, I do not accept that disclosure in this case breaches the "curtain of privacy". As in Re H it does not truly involve disclosure outside the family. Disclosure, if made, will not be in some public or semi-public manner. It will be to a very limited class of persons comprising the father (who is entitled to it in any event), the mother (who was his partner and is the mother of the granddaughter) and to the Registrar, the welfare officer and Mr Tucker, who will receive the same under duties of confidence.
42. However, I do not agree that disclosure of the psychological assessment will breach the third, fourth and fifth respondents' privacy 'to a small degree' as contended by Mr Robinson or that the respondents are trying to 'hide away' matters referred to in the Court. I accept that their distress at this proposed disclosure is genuine and self-evident.
43. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others. In Z-v-Finland [1997] 25 EHRR 371, the European Court was concerned with disclosure into public criminal proceedings of medical information concerning the defendant's wife. The Court's approach was as follows:-
"In determining whether the impugned measures were 'necessary in a democratic society', the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued.
In this connection, the Court will take into account that the protection of personal data, not least 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 patent but also to preserve his or her confidence in the medical profession and in the health services in general. .... The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be consistent with the guarantees in Article 8 of the Convention."
The Court added (p 406, para 97):-
"At the same time, the Court accepts that the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings ... where such interests are shown to be of even greater importance."
44. We are not concerned with disclosure into criminal proceedings, but the protection of the personal information contained in the psychological assessment in relation to the third, fourth and fifth respondents is of fundamental importance to their enjoyment of their right to respect for their private and family life as guaranteed by Article 8 of the Convention.
45. These rights of the third, fourth and fifth respondents must however be balanced against the Article 8 Convention rights of the mother, father and granddaughter to respect for their private and family life and, critically, their Article 6 Convention rights to a fair trial, a right which is absolute. The granddaughter is not (presently) a party to the contact proceedings, but she is the subject of those proceedings, and her welfare is the Court's paramount consideration in those proceedings. It seems to me artificial therefore to argue that her Article 6 rights are not engaged.
46. In terms of the welfare of the third, fourth and fifth respondents, they say that disclosure is not in their interests because of the distress it causes them. However, it seems to me that one can take a broader view of the welfare of the respondents and indeed, of their siblings. The grandfather has sexually abused one of the children and the third, fourth and fifth respondents (if not all of the children) have suffered significant harm as a consequence of his parenting. It is bad enough that they have suffered in this way, but surely it is in their mutual interests to ensure that no further harm is inflicted by the grandfather on his grandchildren and that is achieved (at least) by ensuring that the family are kept fully informed as to the risks. "Family" in this context has to include spouses/partners of the children who are parents of the grandchildren. In the case of the granddaughter, why expose her to the risk of harm by seeking to withhold information that might help protect her?
47. I have given careful consideration as to whether I can protect the third, fourth and fifth respondents' qualified Article 8 rights whilst not breaching the absolute Article 6 rights of the mother, father and granddaughter by some form of restricted disclosure.
48. This was a matter of some discussion at the hearing. The application is for disclosure into the contact proceedings and I have an inherent concern about this Court limiting disclosure to one expert appointed by the Registrar (Mr Tucker) in those proceedings, so that he alone has information which he cannot impart further (not even to the Registrar) without leave of this Court. It seems to me that imposing such a restriction would constitute undue interference in the conduct of the contact proceedings by the Registrar. If disclosure is to be made it should be made into the proceedings as a whole so that the Registrar can then give directions as to its use thereafter.
49. In any event, even if Mr Tucker were to have this information which no-one else was able to see, if he relied upon it in any way, then the requirements of a fair trial must dictate that the parties in the contact proceedings have access to it in order that they can be satisfied that the material has been properly tested. The matter would then have to come back to this Court for leave with all the delays that that involves.
50. I have considered whether the report could be redacted so that it is limited to those parts that say deal only with the father and grandfather. However it is the dynamics within the family that in part Mr Tucker wishes to understand and inform the Court in the contact proceedings, and having tried the redaction exercise, I was left with a very fragmented document, which would be difficult to understand. If the report is to be disclosed at all then I concluded that it should be disclosed as a whole.
51. I have considered whether Mr Tucker could investigate the family dynamics afresh without reference to the psychological assessment. He could interview the father but there was no certainty that the grandfather and the other children would cooperate. Lisa Wolfe had access to and the cooperation of all of them and her insight into the family dynamics at that point was not something I felt could be replicated.
52. I have also given consideration as to whether the fifth respondent's welfare, being a child for the purposes of the Children Law, should be paramount. For Article 2 of the Children Law to be engaged, I would have to be satisfied that this issue concerned his upbringing. Upbringing ordinarily means care and training and in the absence of any authority on the point, I do not regard this issue of disclosure as being truly concerned with the fifth respondent's upbringing. If I am wrong in that respect, I would take a broad view of his welfare as above, and would not regard it as outweighing the absolute right of the mother, father and granddaughter to a fair trial.
53. As Munby J said in Re X (Disclosure of Information) [2001] 2 FLR 440:-
"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."
54. I have taken into account all of the factors put before me by the parties, but in essence, I have to balance the enjoyment of the qualified Article 8 rights of the third, fourth and fifth respondents (and those of the children who object) to respect for their private and family life and the distress disclosure will cause them on the one hand against the absolute Article 6 right of the mother, father and granddaughter for a fair trial, and in particular, the need to protect the granddaughter from the risk of harm. I have genuine empathy for the respondents and the distress this is causing them but in the end I have concluded that the balance comes down firmly in favour of disclosure of the psychological assessment into the contact proceedings. It will be disclosure to a limited class of persons within the family and is thus proportionate. The fact that there may be other applications in the future for disclosure of the psychological assessment into proceedings concerning other grandchildren cannot be a reason for refusing this application and by so doing denying the mother, father and granddaughter a fair trial and exposing the granddaughter to risk of harm.
55. Disclosure should be made in the first instance to the Registrar alone, so that she can ensure that disclosure thereafter is strictly limited to that necessary for the proper conduct of the proceedings before her. I am informed that it is the general practice for such reports to be held by the lawyers acting for the parties, who can have access to it only at their respective lawyers' offices. The mother and father are not parties to the application before me and so I cannot make orders binding upon them. The Registrar will, I am sure, take all necessary steps to ensure that the mother and father do not obtain physical or electronic copies of the psychological assessment.
56. Finally, in relation to the second respondent, I have been informed since the hearing that he too objects to disclosure. He has, through Mrs Corbett, passed on his mobile telephone number to the Court, but not an address. When this judgment is handed down, I will discuss with counsel who should contact him, but it would be my intention to give him fourteen days to apply to be heard on this matter before the order for disclosure is put into effect. It would surprise me if he would be able to add anything to the arguments already put forward on behalf of the third, fourth and fifth respondents.
Authorities
Children Rules 2005.
Children (Jersey) Law 2002.
In the matter of H [2010] JRC 090.
In the matter of A (A child) [2012] UKSC 60.
Minister for Health and Social Services-v-X Children [2009] JRC 191.
Re X (Disclosure of Information) [2001] 2 FLR 400.
Z-v-Finland [1997] 25 EHRR 371.