W. J. Bailhache, Q.C., Deputy Bailiff, with Jurats Clapham and Liston
Minister for Health and Social Services
B (The mother)
Lucy (the child)
IN THE MATTER OF LUCY (CARE PROCEEDINGS)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate D. C. Robinson for the Minister.
Advocate H. J. Heath for the Child.
the deputy bailiff:
1. This judgment is given in respect of an application by the Minister who seeks leave under Rule 25(1) of the Children Rules 2005 ("the Rules") to disclose a number of documents produced to the Court in connection with care proceedings involving the Child to the Independent Chair of the Jersey Safeguarding Children Board ("the Board") and others as authorised by the Independent Chair for the purposes only of undertaking a serious case review ("an SCR").
2. Rule 25 of the Rules provides as follows:-
"(1) No document, other than a record of an order, held by the Court and relating to proceedings may be disclosed, other than to -
(a) a party;
(b) the legal representative of the party;
(c) a person appointed under Article 75;
(d) a Welfare Officer; or
(e) an expert whose instruction by a party has been authorised by the Court,
without leave of the Court.
(2) Nothing in this rule shall prevent the notification by the Court of a direction under Article 29(1) to the Minister.
(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."
3. The documents which the Minister seeks leave to disclose fall into these categories:-
(i) statements of various Social Workers employed in the Children's Service;
(ii) a statement of the Guardian;
(iii) care plans produced by various Social Workers employed in the Children's Service;
(iv) reports of Psychologists in respect of both the Mother and the Child;
(v) reports from CAMHS and instructions to the service;
(vi) reports from the Alcohol and Drug Services and instructions to them.
4. The Court had before it an Affidavit sworn by Ms Glenys Johnston, the Independent Chair of the Board in support of the application for leave to disclose. Ms Johnston has extensive experience of undertaking serious case reviews as both an independent overview report author and as the independent SCR panel chair. Responsibility for conducting serious case reviews in Jersey apparently falls under the auspices of the Chief Minister and Ms Johnston deposes that the intention is to follow the guidance set out in the document issued by H M Government in the United Kingdom in March 2013 entitled "Working together to safeguard children".
5. Ms Johnston describes the process of conducting an SCR:-
(a) The Independent Chair decides whether an SCR should be conducted.
(b) Each agency that had an involvement with the children appoints a Senior Manager or an external person who has had no previous contact with the case; such a person then reviews all relevant documents and then produces a chronology of the engagement of the agency and an independent management report with findings and recommendations.
(c) Each agency chronology, once completed, is combined into one composite chronology.
(d) An independent overview report author produces an overview report which together draws all the findings contained in the independent management reviews.
(e) Drafts of those reports are periodically reviewed by the SCR panel established to oversee the process.
(f) All reports are anonymised from the outset and are only shared on a confidential basis to appropriate people.
(g) The overview report is presented to the SCR Sub Group and is then accepted by the Independent Chair.
(h) The process should be carried out as quickly as possible so that any lessons can be shared with agencies and implemented to improve practice.
6. In support of the application for leave to disclose, Ms Johnston said this:-
"I consider it is essential in the interests of children in general, that there is a review of agencies involvement in this case in order to assist, where necessary, in improving child protection arrangements on the Island.
If the documents are disclosed for the purposes of the SCR they will be shared with the relevant Individual Management Author, the Overview Author and me. The Documents will be securely distributed and logged, kept confidential at all times and at the conclusion at the SCR they will be securely destroyed.
Whilst the contents of the Documents will be used to undertake the SCR no part of the documents will be published".
7. Ms Johnston deposed that she had sent letters to the respondents to this application and to the second respondent's sister and father to inform them that it was proposed to conduct a SCR. These letters were sent in September 2013. In her Affidavit sworn on 27th January, 2014, Ms Johnston does not indicate whether any reply was received, although in argument before us, we were informed that the mother has contacted the Law Officers' Department twice to say that she does not wish to participate in these proceedings as long as her child is not removed from her care. A note of a telephone conversation on 3rd July was shown to us and it appeared to indicate that the mother was about to start new employment and would be unable to attend Court, but did not object to disclosure.
8. Ms Johnston gave evidence to us. In the course of that evidence, she was asked by Advocate Heath, on behalf of the child, whether she would ensure that an audit trail in relation to the documents disclosed was maintained, and whether she would give directions to ensure confidentiality of the documents was maintained. She agreed that she would. She also told us that she intended to publish a report at the conclusion of the Serious Case Review. This is an important part of the performance of her functions because it is the publication of the critique which enables others to hold the agencies to account in the future as to whether they have taken the recommendations on board, or if they have not, to justify why they have not done so.
9. It was in the context of publication that the Court asked Ms Johnston if she would agree to share a draft report with the Court prior to publication in order the Court could make suggestions, if it thought fit, as to any redactions that might be appropriate in order to protect the child.
10. The Court understood her to agree to give that undertaking.
11. We also agreed to proceed in the absence of the mother pursuant to Rule 17 of the Rules. We were satisfied it was right to do so in the circumstances of this case, as it was clear that both the mother and the child were aware of the date of the hearing and for different reasons had chosen not to attend.
12. In presenting the application on behalf of the Minister, Advocate Robinson indicated that the main reason for seeking leave to disclose the different documents was the public interest in having a SCR. He did make some efforts to suggest that the outcome of the SCR might assist in the arrangements made for the protection of the child, who is in the care of the Minister, but he quite quickly accepted that this was a submission not capable of serious justification as the child will no longer be under a care order with effect from December this year, and it could not have been anticipated, even in July, that the outcome of the SCR would be available in sufficient time to make any difference to the care arrangements for the child until her 18th birthday. Indeed Ms Johnston in her Affidavit did not subscribe to any view that the purpose of seeking disclosure was to assist in the care of the child. Her reasoning was as set out above, namely that the SCR was in the interests of children in general.
13. When the Court retired to consider the matter, we did so against the assurance which Ms Johnston had given to us in the course of giving evidence that she would provide a draft of the report to the Court prior to any publication in order that the Court might have the opportunity of commenting on its contents insofar as the impact on the child was concerned. Upon that basis, the Court had been minded to exercise its discretion to grant this application. We were surprised to find on our return that Advocate Robinson made it plain that Ms Johnston did not offer any such undertaking and when we took that matter up with Advocate Robinson, because the position which he adumbrated was different from that in Ms Johnston's evidence before us, he said that since that time he had given legal advice to her. We draw the inference from this that the approach which Ms Johnston was going to take, which she agreed in her evidence, and which we considered was pragmatic, had been now constrained by some legal advice over what the Court was entitled to require.
14. As a result we reserved judgment, indicating that it would be some months before we were able to deliver our reasoned decision. This was a result of pressure on the Court diary.
15. Following the hearing, the Court received a letter from Advocate Robinson drawing our attention again to the question of whether the Court had any jurisdiction to make a direction to the Board in relation to the exercise of its functions. It was respectfully submitted that Rule 25 envisaged that the Court would rather grant an application for leave or not, and that the Rule did not envisage that the leave would in any way be conditional on the Court's requirements in other respects being met. The Court was reminded of the decision of the Jersey Court of Appeal in In the matter of D  JCA 104 insofar as it distinguished the rôle of the judiciary from that of the public authority once a final decision was made. Advocate Robinson also indicated that Ms Johnston would obtain written confirmation from the recipients of the information disclosed to them that:-
(a) They were aware of the confidentiality of the documents so disclosed and they would not onwardly disclose the document to any other person except with the permission of Ms Johnston;
(b) They would not make or retain copies of documents disclosed; and
(c) They would return the documents to Ms Johnston at the end of the SCR.
16. As we indicated at the time of the hearing, the underlying circumstances of the case involving this child are such that in principle we think that an SCR would potentially be of some benefit to children generally though not to this child; but the insistence that we address this application on a principled and not pragmatic basis has resulted in the application becoming much more difficult than otherwise might have been the case.
17. The starting point is that Rule 25 contains non-disclosure provisions. In other words, there are restrictions against disclosure of sensitive documents produced in the course of childcare proceedings. There is an underlying assumption that such documents will only be used in the proceedings for which they are produced. That assumption is important because it is capable of influencing the approach which parties and witnesses may take to what they say to each other, what opinions they reach and how those opinions are expressed in the course of the proceedings. It is an obvious example, but where the Court orders a psychological report, the person on whom the psychologist is reporting may well take a different view about making disclosures to the psychologist which will later appear in one form or another in the psychologist's evidence to the Court if he or she thinks that that information will be publically available, identifying the person concerned. The non-disclosure provisions have an important part to play in establishing the framework by which the Court can do its job and ensuring that an appropriate approach is taken to applications made under the Children (Jersey) Law 2002 ("the Law").
18. It is for the same reason that the Court sits in private in relation to such proceedings. These considerations are then balanced against the desirability of ensuring there is open justice and a transparency about how the Law is applied by the publication of the judgments which the Court makes. In preparing those judgments, the Court is always sensitive to the need to anonymise the information that is being placed in the public domain, so as to ensure that neither parent nor child is capable of being identified. This is, naturally, not always an easy task and whilst we readily accept that from time to time there is a risk that such identification can take place, we hope that by and large the measures that are taken prevent such identification.
19. Article 2 of the Law contains what is known as the welfare principle. When the Court determines any question with respect to the upbringing of a child or the administration of a child's property or the application of any income arising from it, the child's welfare shall be the Court's paramount consideration. We do not think this Article applies directly to the question of confidentiality which is raised by the present application, because we are not determining a question with respect to the upbringing of a child or the administration of a child's property or the application of any income from it. Nonetheless, we think it is right to look at the child's welfare as being of fundamental importance to our consideration of this application. Ms Johnston's Affidavit makes it plain that the application is based on the interests of children in general, and these have to be balanced against the interests of the child in this case. There is a particular structural problem with a suggestion of a singular case review because it will inevitably be fact focused on a particular case - and this brings the public interest/private child interest distinction into sharp relief not least because, once the SCR is published, there is a risk of that report being utilised by the media or in political circles in ways in which the Independent Chair of the Board would be unable to control or influence.
20. Contrary to Advocate Robinson's submissions, we emphasise that this is not a question of the Court exercising a jurisdiction to give directions to the Independent Chair of the Board on a matter which falls into her territory and not that of the Court - we recognise that once leave has been given, it is given unconditionally. The situation is more nuanced than that because the purpose of the undertaking we requested was not to ensure that the Court could direct the Independent Chair not to publish or to alter before publication the content of any report but merely to allow the Court an opportunity to bring to the attention of the Independent Chair any aspects of the report which the Court considered might prejudice the private interests of the child in such a way as was unfair. The fundamental question is whether the Court is comfortable about exercising its discretion to grant leave to disclose. In this case it would have been comfortable to do so, had the Independent Chair's pragmatic approach been maintained, but in the light of the legal advice which has led to that pragmatic approach being varied, the issue is whether we remain comfortable to exercise the discretion in the way requested.
21. Ms Johnston says that the Board will follow the guidance set out in the UK documents "Working Together to Safeguard Children". This document was drawn up reflecting different statutory provisions - there is reference to section 17, 20, 31 and 47 of the Children Act, and Chapter 1. Paragraph 2 refers to Section 10 of the Children's Act 2004; paragraph 4 refers to local safeguarding children's boards, paragraph 8 with common assessment frameworks; paragraph 22 and those following deal with effective sharing of information; paragraph 26 deals with statutory requirements and at chapter 4 page 65, there is a reference to SCR being required under different legislation. We note that in the United Kingdom local safeguarding children boards have a statutory basis with regulations made in 2006. This seems to come from section 14(2) of the 2004 Act, and it is not apparent that we have any equivalent in Jersey.
22. We make these comments because while we have no doubt at all that there are a number of protections, powers and counterweights as a premise to the English framework, it is not obvious that that premise is automatically transferable to Jersey, which has caused us to pause and take stock again of fundamental principle.
23. Furthermore we note from page 71 of the guidance document that the publication of reports is intended to support a national sharing of lessons learned. That is completely understandable in a large jurisdiction such as England and Wales, or the even larger jurisdiction of the United Kingdom. It is obviously desirable that lessons learned in one part of the country are not ignored in another part of the country. Here, however, we do not have the same practical considerations. It is obvious that the agencies should learn lessons from what they have done in the past but there is no equivalent advantage of ensuring that that the lessons learnt by an agency in one part of the country are also learnt by agencies which have not had that direct experience in another. By contrast we do have here the statutory warning that we should have regard to the welfare of the child in relation to particular applications made in the proceedings which concern that child.
24. This is an application by the Minister and the burden of proof lies clearly on the Minister to satisfy the Court that its discretion ought to be exercised in her favour. But what discretion? It appears to us that it is not a case of the Minister persuading us that the public benefit outweighs any potential private detriment. The Law was clearly adopted for the protection of children generally but it achieves that purpose by the protection of individual children. In our judgment the position is that the Minister must persuade us that there is no substantial private detriment, because if there is, the structure and intention of the Law and Rules is that the private interests outweigh any public interest which might arise from conducting a SCR. In saying that we have regard to the fact that there is no statutory provision at all for the conduct of SCR. We have no doubt that the Board intends to carry them out in the best interests of children generally but that there is nothing in the legislation which provides that it must do so, and indeed nothing which suggests that the legislature has given any indication that the Board will be set up at all, let alone how its jurisdiction should interact with the framework established by the Law and the Rules.
25. Advocate Heath submitted that the independent chair of the Board is a public authority for the purposes of the Human Rights (Jersey) Law 2000 and we would be minded to accept that submission. She then went on to contend that information disclosed to Ms Johnston would be disclosed "in accordance with the law" for the purposes of the Convention because it would comply with the Data Protection (Jersey) 2005, and would achieve the legitimate aims of that latter statute. It seems to us that this elides two quite different pieces of legislation - the Data Protection (Jersey) Law and the Human Rights Law. In many respects they are indeed complementary but in our view the former piece of legislation is effective in the current case insofar as it may regulate the way in which the data is handled, but it cannot be said that the former legislation enunciates any legitimate aim for disclosure for the purposes of the Law or indeed for the purposes of the Human Rights Law; and indeed it therefore becomes difficult to assess the proportionality of a decision to make disclosure against the legitimate aims provided for by statute, because the Law provides none. By contrast all that is really provided is by Rule and is to the effect that there should be no disclosure unless the Court so orders.
26. At the end of the day the potential detriment for the child - who, perhaps like her mother, is by this stage disenchanted with the whole judicial process and simply wants it all to go away - arises in two areas. First of all, there is the possibility of extremely private and sensitive information coming in to the public domain which may be identified by some as associated with her. This is a risk which is more acute than the risk attached to the publication of a court judgment because the underlying nature of a report from the Board is that it will be given publicity in political and media circles in a way which does not usually arise with judgments of the Court, the publication of which is restricted to those who can justify a requirement to see them. That is an observation made from the Court's knowledge of this small jurisdiction. Secondly there is the potential detriment, which in our judgment comes at a higher level than merely possible, of a report from the Board which is given serious airtime by the media and in political circles raising again all the sensitivities which lie just below the surface in the relationship between the child and her mother.
27. Had there been a rule that reports of the Board would not be published, none of these considerations would apply. But there is no such rule, and indeed we were informed that the governing assumption is the opposite, and that there will be publication.
28. We had hoped that the pragmatism shown by Ms Johnston in her evidence would have allowed us to exercise our discretion to grant the Minister's application. We were impressed with her approach in giving evidence. But we have now been required to address the issues in a way which does not leave us comfortable with exercising a discretion to grant the application. In our judgment there is a not insignificant risk to this child and we do not think that on the balance of probability the Minister has satisfied us that the risk should be disregarded, nor that to the extent that it exists it should be overridden by some public interest as asserted by Ms Johnston and the Minister. The risk is increased by the fact that the SCR is focussed on the arrangements made by the agencies in this small jurisdiction in relation to one particular child and by the policy of publication of the report which is subsequently produced.
29. For these reasons, the application is refused.
Children Rules 2005.
Children (Jersey) Law 2002.
Children's Act 2004.
Human Rights (Jersey) Law 2000.
Data Protection (Jersey) 2005.