Negligence - proceedings brought against the Minister by the plaintiffs.
Before : |
Pamela Scriven, Q.C., Commissioner, sitting alone. |
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Between |
The X Children (through their Guardian ad litem, Advocate T. V. R. Hanson) |
Plaintiffs |
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And |
The Minster for Health and Social Services |
Defendant |
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Advocate T. V. R. Hanson for the Plaintiffs.
Advocate D. A. Corbel for the Defendant.
judgment
the commissioner
1. I am dealing with a case in which three plaintiffs, to whom I shall refer as X, Y and Z, have brought proceedings in negligence against the Minister for Health and Social Services. The basis of the claim is that the Minster failed to protect them from sexual, emotional and physical abuse when they were young children; the issue being whether on the balance of probabilities the Minister failed, in the exercise of his child care functions, to take reasonable steps to keep the plaintiffs free from foreseeable harm.
2. In the course of the preparation for these proceedings, and under the direction of the Court, both the plaintiffs and the Minister obtained expert evidence.
3. In 2014, the Independent Jersey Care Inquiry began work on the tasks entrusted to it by the States of Jersey in relation to the investigation of historic child abuse on the Island (the terms of reference of which I shall consider in due course). In October 2014, a request was made to this Court by the Inquiry for disclosure to it of the expert reports which had been filed in these proceedings.
4. On 23rd October, 2014, this Court heard submissions on behalf of the plaintiffs and the Minister in relation to that request. It was accepted by both parties that it was appropriate for disclosure to be made to the Inquiry of the expert reports obtained on both sides, subject to redaction prior to disclosure to ensure that the identities of the plaintiffs and of any other minor children mentioned in the reports were suitably protected. The relevant reports were those from Maria Ruegger and Stephen Pizzey, each of whom had by that time reported on number of occasions, and from whom addendum reports were expected.
5. Having heard those submissions, the Court ordered on 23rd October, 2014, that there be:-
"1 Leave to disclose the joint and supplemental reports of Maria Ruegger and Stephen Pizzey to the Jersey Committee of Inquiry but only in a form that redacts and preserves the anonymity of the names and identities of the Plaintiffs and any other minor children referred to in the reports.
2. The draft redacted reports which have been supplied by the Plaintiffs are to be reviewed and responded to by the Defendant within 7 days to ensure that the anonymity of the Plaintiffs and any other minor children referred to therein is preserved, and in default of agreement on the final redacted form, to be submitted to the Court for resolution.
3. The disclosure to the Jersey Committee of Inquiry is not to take place until the redaction of the reports has been agreed by the parties as being suitably redacted in compliance with this order or, in default of agreement, as approved by the Court."
6. The reports were in due course redacted by agreement between the parties and provided to the Inquiry. A first tranche were sent out in December 2014, and a second tranche in February 2015.
7. The experts have provided further reports since the 23rd October, 2014, and the Inquiry wishes to have disclosure to it of the post-dating reports. An issue has also arisen as to what use the Inquiry may make of those reports, and, in particular, whether the reports may be placed on the Inquiry website. The Inquiry wishes to have disclosure to it of the subsequent reports and to be able to use all the disclosed reports as it sees fit in accordance with its remit. This is supported by the plaintiffs but opposed by the Minister.
8. The questions of the disclosure of the further reports to the Inquiry and whether I should put any limitation on the use to which the Inquiry may make of the documents disclosed to it are the issues which I am therefore being asked to determine.
9. When I became aware of the current issues, I fixed a date for hearing. I invited written submissions from the Inquiry and indicated that I would hear counsel on behalf of the Inquiry at the hearing if the Inquiry so wished. I also asked for clarification as to what purposes the Inquiry would wish to make of the disclosed reports.
10. In the event I had written submissions from counsel to the Inquiry, an affidavit filed on behalf of the plaintiffs indicting their consent to the requests, a written skeleton argument filed on behalf of the Minister opposing them, and further written submissions on behalf of the Inquiry in response to the submissions of the Minister. At the hearing I heard oral submissions from Advocate Hanson on behalf of the plaintiffs and Advocate Corbel on behalf of the defendant. I am grateful to them all for the assistance they have given me.
11. At the time of the Act of Court permitting disclosure on 23rd October, 2014, the reports in existence were a joint statement of Ms Ruegger and Mr Pizzey of 3rd June, 2014, a supplemental report by Mr Pizzey of 25th September, 2014, and a supplemental report by Ms Ruegger of 30th September, 2014. Post-dating the order was a second addendum report by Ms Ruegger of 18th November, 2014, a final report by her dated 25th February, 2015, and a final report by Mr Pizzey of 12th February, 2015. Counsel for the Inquiry submits that the wording of the Act of Court of 23rd October, 2014, appears to cover the disclosure of prospective reports, but, for the avoidance of doubt, seeks disclosure of those made after 23rd October, 2014, as well as those beforehand.
12. As to the use the Inquiry would wish to make of the reports, once disclosed and redacted, it would be to make them available to interested parties as defined under the Inquiry's protocols and to become public documents available on the Inquiry website. The reports would however, only be made available once the redactions ordered by this Court had taken place, and there would also be an additional level of redaction because the Inquiry has its own process to ensure that the documents which it makes public comply with its own protective protocol. Counsel for the Inquiry submitted that how the reports are used once disclosed should be a matter for the Panel of the Inquiry. He also made the point that the Department of Health and Social Services is an interested party to the Inquiry, and is in a position to make submissions to the Panel of Inquiry as to the extent that the Panel should make use of the reports. It was submitted by him that how the reports are used once disclosed should be a matter for the Inquiry Panel, and that submissions on use can and should be submitted to the Panel, not to this Court.
13. It was accepted on behalf of the Inquiry that in order to permit disclosure, this Court would need to be satisfied that disclosure of the reports (subject to redaction) is justified, the more so given the sensitive nature of the material set out in the reports. The Inquiry recognises the sensitivity of the material within the reports and the need for there to be careful scrutiny within its own redaction process before publication.
14. On the question of whether the reports are relevant to the work being undertaken by the Inquiry, my attention was drawn to the opening remarks made to the Inquiry on 3rd April, 2014, by the Chair of the Inquiry, Frances Oldham QC, in which she set out the Inquiry's primary purpose. She said: -
"The Inquiry has been set up to establish what went wrong in the Island's care system over many years and to find answers for people who suffered abuse as children. We have been asked by the States of Jersey to investigate the abuse and mistreatment of children placed in children's homes and in foster care...we will be investigating what abuse took place, and whether abuse was covered up. We will examine whether abuse was reported and what was done, if anything, about those reports. We will be considering what safeguards were in place and whether they were adequate to prevent abuse and to ensure that the reports of abuse were investigated properly and by the appropriate authorities. We will review the actions of the police, the justice system, the politicians and the various agencies of government, with a view to considering how each of them responded to concerns about child abuse in Jersey. In doing so, we will be asking ourselves whether the policies and procedures of those organisations were fit for purpose at the time."
15. My attention was also drawn to the following particular terms of reference of the Inquiry, which were agreed by the States of Jersey in March 2013. It is said by Counsel to the Inquiry that the following are illustrations of why the reports filed in these proceedings are relevant to the task being undertaken by the Inquiry. [The terms of reference appear in italics and Counsel for the Inquiry's observations as to relevance appear below in normal font]: -
"1. Establish the type and nature of children's homes and fostering services in Jersey in the period under review, that is the post-war period, with a particular focus on the period after 1960. Consider (in general terms) why children were placed and maintained in these services."
Fostering as it occurred in this family is one of the issues addressed in detail in the reports, as is the provision of fostering and alternatives to fostering which were available on the island at the time.
"3. Examine the political and other oversight of children's homes and fostering services and other establishments run by the States with a particular focus on oversight by the various Education Committees between 1960 and 1995, by the various Health and Social Services Committees between 1996 and 2005, and by ministerial government from 2006 to the current day."
The reports review and analyse systemic issues within Children's Services over the relevant period and comment on the extent to which policies and measures relating to child protection were or should have been aligned to policy and measures in the UK. Analysis is also provided of the 1993-1997 Strategic Review.
"4. Examine the political and societal environment during the period under review and its effect on the oversight of children's homes, fostering services and other establishments run by the States, on the reporting or non-reporting of abuse within or outside such organisations, on the response to those reports of abuse by all agencies and by the public, on the eventual police and any other investigations, and on the eventual outcomes."
The reports provide a case study and a critical analysis of Children's Services approach to the reporting of abuse, and the response to reports of abuse by various agencies.
"5. Establish a chronology of significant changes in childcare practice and policy during the period under review, with reference to Jersey and the UK in order to identify the social and professional norms under which the services in Jersey operated throughout the period under review."
The expert reports provide a detailed analysis of comparative developments in social work practice and legislation in Jersey and the UK, and comment on specific issues such as record keeping and making assessments.
"8. Identify how and by what means concerns about abuse were raised and how, and to whom, they were reported. Establish whether systems existed to allow children and others to raise concerns and safeguard their wellbeing, whether these systems were adequate, and any failings they had."
In the history set out in the reports, reference is made of the frequency of reporting by children to teachers and the response of Children's Services; and of frequent reports by the mother of abuse on her. The reports contain analysis of how disclosure and frequency of disclosure was addressed by various agencies.
"9. Review the actions of the agencies of the government, the justice system and politicians during the period under review, in particular when concerns came to light about child abuse and establish what, if any, lessons are to be learned."
The reports detail the involvement of a number of individuals and of actions taken which fall well within the terms of reference.
"10. Consider how the Education and Health and Social Services Departments dealt with concerns about alleged abuse, what action they took, whether these actions were in line with the policies and procedures of the day, and whether those policies and procedures were adequate."
In addressing a specific case history, the experts provide a case study on the extent to which policies and procedures were adequate.
"11. Establish whether, where abuse was suspected, it was reported to the appropriate bodies, including the States of Jersey Police; what action was taken by persons or entities including the police, and whether this was in line with policies and procedures of the day and whether those policies and procedures were adequate."
The reports provide an analysis of the extent and effectiveness of inter-agency cooperation.
"14. Set out what lessons can be learned for the current system of residential and foster care services in Jersey and for third party providers of services for children and young people in the Island."
Although dealing with a specific case, the reports provide an analysis of failures in care up to 2007 from which lessons can be learned.
"15. Report on any other issues arising during the Inquiry considered to be relevant to the past safety of children in residential or foster care and other establishments run by the States, and whether these issues affect the safety of children in the future."
The Inquiry is charged with looking at the systems that have operated and are operating in children's services in Jersey. Whilst recognising that the terms of reference are primarily concerned with residential and foster care provisions, the Inquiry is looking at the system as a whole, and the reports are relevant by identifying where, if any, fault lines in systems, institutions, within and between agencies may have existed and in identifying and comparing systems now.
16. It was accepted on behalf of the Inquiry that I have a discretion as to whether or not I should order disclosure of the reports, and that in doing so I must conduct a balancing exercise in which I must weigh up different and competing factors. Counsel for the Inquiry referred me to English authority in relation to the disclosure to the police of material protected by confidentiality in care proceedings, and, in particular, to In the matter of the X children [2007] EWHC 1719 (Fam).
17. The competing interests which the Court may consider include the need to maintain public confidence in the provision of child protection services and the desirability of co-operation between various agencies concerned with the welfare of children. If it is being said on behalf of the Minister that public confidence in child protection may be put at risk by disclosure, any such concern is forfeited by the remit and nature of the Inquiry itself, the reason for it being established by the States, and the all-encompassing span of the terms of reference set into the provision of children's services on the island.
18. In deciding whether the reports should be disclosed publicly it was submitted on behalf of the Inquiry that the following factors should be placed in the balance:-
(i) The function of a public inquiry is to elicit and make publicly available evidence relevant to the terms of reference it has been charged to review, which in this case is the management and oversight of services for children in the care of the States of Jersey, including the period covered by the experts in this case.
(ii) The plaintiffs wish the reports to be disclosed to the public.
(iii) It is in the plaintiffs' interests that the reports are disclosed to the public as the commentary provides a history of social services involvement and in assisting the Inquiry works toward the goal of setting out any lessons that can be learned.
(iv) There is a public interest in furtherance of the Inquiry's function that the reports are made public:-
(a) In their individual reports, the experts provide an overview of social work practice over the relevant period as well as influences on policy and legislation.
(b) Each expert provides analysis on how social work management, systems and standards were applied in practice, and interaction with other agencies, and operational approaches.
(c) In their joint report, the experts review and discuss the analyses they have provided individually.
(d) As such, the X children is an important case study within the context of the Inquiry's terms of reference.
(v) Concerns that the Court will have to protect the children's identities are met by the parties' redactions and the Inquiry's protective measures.
(vi) Concerns that the Court may have as to the proper function of Children's Services being undermined by disclosure and the impact for those working in the service, are in themselves overtaken by the scope of the Inquiry's public evidence to date. The functioning of Children's Services is already under the Inquiry's scrutiny.
(vii) It is part of the Inquiry's function to make recommendations in relation to the provision of Children's Services, and the disclosure of the reports goes to that end.
(viii) Concerns that the Inquiry should have a balanced review are met by the disclosure of both parties' reports.
(ix) The suggestion by the Minister that the Inquiry could carry out its own analysis of the records (contained in 26 lever arch files which would have to be redacted) and arrive at its own assessment would not be a proportionate use of public funds given the time and expense it would entail and given the expert assessments that have already been carried out.
19. There is an assertion on behalf of the Minister that the reports are subject to an implied undertaking that the documents would not be used by the other party for any other purpose than within the proceedings. It is not accepted on behalf of the Inquiry that any such right to confidentiality or implied undertaking exists, or can be inferred from the authorities, and it is argued that the Minister has identified no distinguishing features in the present case as to why confidentiality should apply.
20. The proceedings before me began when all three plaintiffs were minors, and all were represented by Advocate Hanson as their Guardian. X and Y have now reached the age of eighteen. X, who continues to instruct Advocate Hanson in his adult capacity, consents to the disclosure of all the reports to the Inquiry, and also to their publication and use by the Inquiry as the Inquiry sees fit, provided that the plaintiffs cannot be identified. X hopes that by making the reports public problems of the past will not be repeated.
21. Both Y and Z continue to be represented by their Guardian, who supports disclosure to and full use being made of the reports by the Inquiry, subject to anonymisation, on the basis it is in the best interests of Y and Z. Y, although an adult, has severe emotional and behavioural difficulties and lacks the capacity to make a decision on this issue. However, Y's Guardian gives consent on Y's behalf. The Guardian is of the view that the eventual knowledge that the plaintiffs may have assisted other children will be of benefit to Y (as it will, in his view, be to all the Plaintiffs). The Guardian also consents on behalf of Z for the same reason. Z, although a minor, has been asked for his own views on the issues, and has no objection to disclosure or to the proposed use by the Inquiry of the reports, and wants to help other children.
22. It is submitted on behalf of the Guardian that in determining the issues before me I have to conduct a balancing exercise of all the relevant interests. The Guardian helpfully referred me to a number of authorities with which I shall deal in due course when considering the approach I should take; namely In the matter of X [2003] JLR 111 Re D, In the matter of the X children [2007] (supra), and Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76.
23. I intend no disrespect to the helpful submissions by Advocate Hanson if I summarise them by saying that, in essence, they were in line with and fully supportive of the arguments put forward by counsel to the Inquiry.
24. In the skeleton argument filed on behalf of the Minister, it was said that the Minister has not consented and does not consent to the reports being disclosed to or used by the Inquiry and certainly has not consented to the reports being published by the Inquiry. In fact, on 23rd October, 2014, no objection was taken on behalf of the Minister to the disclosure of the reports, and there was no appeal against that order. However, there was an error in the redaction process in reports provided following the October order, in that one detail was missed by the advocates and was not properly redacted (although this has been corrected). Advocate Corbel has also drawn my attention to the fact that there appears to have been certain problems with the Inquiry's redaction of some documents placed on the Inquiry website or otherwise used by it. She submits that these matters cause the Minister to lack confidence in the safeguards which the Inquiry will put in place, and, with the benefit of hindsight, merit a different approach being taken now to the issue of disclosure. I therefore treat the Minster's position as being one where objection is being taken to disclosure of any reports which postdate the Act of Court of 23rd October, 2014, and to the publication or other use by the Inquiry of any of the disclosed material.
25. Advocate Corbel makes the point that these proceedings have been conducted under very careful anonymity provisions ordered by and continued by direction of this Court. There has been compromise between the parties on a number of issues, and because there has been compromise, there has been no judicial determination of the factual or legal matters in issue in the proceedings, and, in particular, no judicial findings have been made relating to the reports themselves.
26. The reports themselves contain a number of elements which are as follows; (i) a recital of the facts (ii) non-sensitive material such as published social work practice and guidance which is already in the public domain; (iii) a vast amount of highly sensitive material, a significant amount of which was disclosed by the Minister as a result of the disclosure requirements within these proceedings; and (iv) expert opinion on liability in terms of the negligence claim. There were significant differences between the experts in their analysis and conclusions. There has been no determination by the Court of their conclusions, nor of the differences between them, and in that sense their opinions remain untested.
27. The Minister submits that the usual rules as to the use by a third party of documents within a civil claim apply. In any civil claim in which documents are disclosed pursuant to an order/Act of Court or in compliance with procedure rules there is an implied undertaking that those documents will not be used for any other purpose by the other party/parties. In effect it confers a right of confidentiality in the relevant material. I was referred to the case of Appleton v Gallagher [2015] EWHC 2689 (Fam) an English case in which Mostyn J held that, in proceedings for ancillary relief, which the press had been allowed to attend "as a watch dog", the parties were entitled to privacy in relation to their financial affairs and that 'Information compulsorily extracted by one party from the other is subject to an implied undertaking that it will not be published or used for any purpose other than the proceedings".
28. I pause here to observe that (as Mostyn J said at para 8) the basis of the protection offered in ancillary relief proceedings lies in "the very fierce demands made of the parties by the process. There is an absolute duty of full frank and clear disclosure. The court exercises an inquisitorial function. The information provided by the parties is made under compulsion and extends to all aspects of their economic existence, past, present and future. The scope of disclosure is far wider than in a civil dispute. There the disclosure will only be of those particular documents which relate to the subject matter of the dispute. In contrast, in ancillary relief proceedings you basically have to disclose everything about your economic life."
29. It was accepted on behalf of the Minister that different considerations may apply to an expert report which has not been disclosed under the compulsion of an order or Act of Court. In this respect, I was referred to the case of Prudential Assurance Co v Fountain Page [1991] 1 WLR 756, a decision of Hobhouse J. It was argued by Advocate Corbel that, even where an expert report was not provided under compulsion, the Prudential case demonstrates that the confidentiality of a report can be implied from the circumstances, and it should be so implied here. Although the reports here were not supplied under compulsion, it is argued that there is a right to confidentiality because the reports cannot be read without reference to the documents, many of which are sensitive in nature, and many of which were provided by the Minister as a result of orders for disclosure made by this Court, and thus under compulsion. The orders requiring disclosure were on the basis that the court was maintaining a structure of confidentiality and privacy, under which, by way of example, there is an embargo on anyone reading the Court file without permission of the Court.
30. It was, however, also accepted on behalf of the Minister that the Court does have power to override any such implied undertaking or "right" of confidentiality, and that, in considering whether or not to do so, the court must conduct a balancing exercise of the relevant competing interests, public and private. In the Prudential case itself, Hobhouse J took the view that the Court has the power to release the recipient of a report wholly or partly from the implied undertaking not to use the document outside of the proceedings, and to permit the use of the documents nevertheless. I was however, reminded by Advocate Corbel that Hobhouse J did express the view (which I observe was obiter dicta) [at 775 A-B] that "Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party. (This is, of course, subject to any overriding principle of public policy.)"
31. The Minister's case on the exercise of a balancing exercise is that the balance comes down in favour of a refusal of the Inquiry's request. To be put into the balance are the following matters:-
(i) The terms of confidentially under which the reports were commissioned and disclosure given (by which what is referred to are the privacy provisions imposed by the Court, including the restriction on access to the Court file) must have led to an implied undertaking that the documents would not be used by the other party or a third party.
(ii) Of the material within the reports (set out at para 26 above), (i) to (iii) are available to the Inquiry through its own procedures. The non-sensitive material is in the public domain. The Inquiry also has access to the sensitive material through its own process with such of its own safeguards as it thinks appropriate. As an interested party the Minister can take part in it. Proper safeguards can no doubt be considered and applied within the terms of reference and procedures of the Inquiry. The only part to which the Inquiry would not have access is the opinion of the experts. How, asks Advocate Corbel, could their opinions be relevant? They have not been tested in these proceedings. If they are not called by Inquiry, their opinions will not be tested; if called they will give opinions within the terms of reference of the Inquiry not the negligence claim. Their opinion evidence is not relevant and therefore should not be disclosed.
32. It is also submitted that the Inquiry seems to be basing its claim on the fact that the material is relevant to its work, and that the disclosure is therefore necessary. However, relevance is not the test.
33. In addition, the Inquiry has failed to specify the uses to which it would put the reports. It says it wishes to make "full use" of them without specifying what. This would mean that the Minister's rights of confidentiality would be overridden in the widest sense.
34. It is accepted by all parties that I have discretion to decide whether or not the reports in question should be disclosed to the Inquiry, and that in deciding whether to exercise that discretion I must conduct a balancing exercise taking into account the various competing interests, public and private, which arise in this case.
35. The issue which is at the heart of this case is how I should exercise the balancing act in relation to the issue of disclosure. There is no case directly in point, but a there are number of reported decisions which give me some assistance.
36. I noted (at para 30 above) the obiter dicta comments by Hobhouse J in the Prudential case that, although discretion to override an implied undertaking existed, he found it hard to envisage circumstances where it would be exercised. However, I note that he recognised the possibility of overriding public policy considerations. He was not aware of the circumstances of this case. His decision predated, and therefore gives no consideration to, the line of cases established in English jurisprudence in which the Court has had to consider the question of disclosure of material from children's proceedings (which are protected by strict rules of confidentiality) to third parties such as the police, and the guidance given in those cases as to the principles which should govern the exercise of discretion. Whilst not identical to the current situation, I find those authorities to be of assistance and to contain useful guidance as to the approach which I should take here.
37. The leading case is that of the case of Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 (also often referred to sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725). In that case the police applied for disclosure of all the evidence including medical reports and transcript of the judgment which had been given in care proceedings relating to the welfare of a child in which there were allegations of non-accidental injury, and in which the father admitted injuring the child. The judge at first instance had not ordered disclosure on the basis that the public interest in encouraging frankness outweighed the competing public interest which required a full and proper investigation into the death of the baby. The Court of Appeal held that he ought to have ordered disclosure to the police of all the material requested by them. In the leading, and much quoted, judgment of the court Swinton Thomas LJ said [at p 85]:-
"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:
1. 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.
2. The welfare and interests of other children generally.
3. The maintenance of confidentiality in children cases.
4. 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 s-‰98(2) applies. ......................
5. 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.
6. 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.
7. The 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.
8. The desirability of co-operation 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.
9. ..............
10. Any other material disclosure which has already taken place."
38. This remains the leading English authority in cases in which an application is made for disclosure of material which has been generated in children's proceedings (which is normally protected by confidentiality).
39. I was also referred to the case of In the matter of the X children [2007] EWHC 1719 (Fam) where Munby J (as he was) had to consider an application by the police for disclosure of material used in care proceedings for use in criminal proceedings. He reiterated the principles set out by Swinton Thomas LJ in Re C. He drew attention to interests protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms. He also made it clear that the Court has power to and should consider whether there should be limitation or conditions on the use of the documents disclosed; and that sometimes it can be appropriate to take a step by step approach to disclosure.
40. In a more recent case of Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam), Baker J observed that Re C remained the leading authority when deciding whether to release confidential material from care proceedings, although the relative importance of the various factors had changed over time, and there were moves towards greater transparency in care proceedings. He permitted disclosure of his judgment to the police. He recognised that it was for the police, not the family court, to decide whether or not to pursue a criminal investigation, and he also recognised the importance of not impeding the police and CPS from carrying out their statutory duties [para 49]. He made disclosure only to named individuals, saying that he would consider further applications for disclosure if the police wished to use the material further, and gave no indication of how he might consider the balance might fall in the event of any such application.
41. I was also referred to the Jersey case of In the matter of D (Disclosure: Private Law) [2009] JLR Note 18. It was a case where a wife had made allegations of assault by her husband to the police. The husband sought permission to disclose to the police documents produced in family proceedings which he said undermined the allegations of assault. The Deputy Registrar granted permission for them to be disclosed, applying the principles set out in the English cases of Re C onwards.
42. In addition, I was referred to a further Jersey case, In the matter of X [2003] JLR 111 in which a fourteen year old girl had become pregnant and the foetus had been aborted, but tissue samples from the foetus had been retained. The girl's parents wished them to be disclosed to the police so that the man concerned could be prosecuted for sexual offences in relation to the girl. The Attorney General sought a declaration that the Health and Safety Committee would not be acting unlawfully if it released the samples to the police. The parents of the girl supported the application, but the girl herself, by now aged 16, opposed it. The Court of Appeal was unanimous in ordering disclosure of the samples to the police. All members of the Court took the view (albeit for slightly different reasons) that it was necessary to conduct a balancing exercise between the best interests of the girl and the interests of the public in the combating of serious crime, and all were of the view that the balance came down firmly in favour of disclosure.
43. It was submitted on behalf of the Minister that this case is authority for the proposition that consent by a minor may be overridden if appropriate to do so. I do not read the case in that way. In that case, had the minor consented, the proceedings would not have been brought at all. However, looking at the guidance in the English authorities on the approach to disclosure to third parties of material confidential to proceedings relating to children, I accept that consent of the plaintiffs is not determinative of the issues I have to decide, although it is one of the factors I put in the balance here when exercising my discretion.
44. It is accepted that I have such discretion irrespective of whether or not there is any "right" or implied undertaking as to confidentiality. However, I have come to the conclusion that this is a case where an undertaking of confidentially should be implied. Although this is not a case of ancillary relief proceedings (unlike the case of Appleton), it was and remains one where safeguards were put in place, and continue to be in place, to protect the identification of the children. I am prepared to accept that there was an expectation of confidentiality attached to the reports filed by both parties. The structure of the court proceedings has been to protect privacy. Although I have given leave for the proceedings to be heard in public (recognising the importance of open justice and the fact that any restrictions on it must be the exception and must be justified by the particular circumstances), I have done so on the basis that nothing should be reported or published which leads to the identification of any of the plaintiffs. I have continued the prohibition on the inspection of the court file without permission of the Court having first been given. These are children with manifold problems arising from the abuse they have suffered, and anonymity of them and their family members (through whom they may be identified) is of great importance, so that any publicity generated by the proceedings does not result in further harm to them. I also accept that much of the sensitive material on which the reports are based was provided by the Minister because the rules of disclosure required it to be provided, and that it includes intimate details about the plaintiffs' personal lives and of the abuse suffered by them. I therefore approach this case on the basis that it is one where there is an implied undertaking of confidentially.
45. However, if I am wrong about that, in my view it matters not on the facts of this case. The factors which underpin the claim to such an implied undertaking are factors which, in any event, are ones which should be put in the balance in line with the guidance given in Re C when considering whether or not I should order disclosure.
46. The essence of the arguments in favour of disclosure centre around the public interest in supporting and assisting the work of the Inquiry, charged with investigating historic aspects of child abuse and the way child abuse was handled by professionals, and with the purpose of attempting to learn from any mistakes of the past with a view to improving child protection in the future. It is said the material sought is relevant; that it is in the children's interests for it to be disclosed and they wish it to be disclosed, and it is in the interests of children more generally that it should be disclosed.
47. The arguments against disclosure have at their core two aspects. The first is that what is sought is not relevant. The second is that the reports are protected by confidentiality which should not be breached now.
48. I shall consider the various competing features in all the circumstances which arise in this case assisted by the guidance identified in the case of Re C. In the light of the issues raised here, I shall start by considering whether the reports are relevant to the work of the Inquiry. I entirely accept the submissions made by the Minister that the fact that the document may be relevant is not the test as to whether the documents should be disclosed. But it is an essential question. Are the documents relevant? If they are not, there can be no purpose in disclosure. If, however, they are, that does not lead to an inevitable determination that they should be disclosed. In those circumstances I have to decide whether or not, in all the circumstances, and taking into account all the relevant competing interests, disclosure should be ordered in this particular case, and whether or not I should put any limits on the use to which the Inquiry makes of the documents.
49. I have given careful consideration to the question of whether the material sought is relevant to the work of the Inquiry. I have looked at the terms of reference of the Inquiry and how it is said that the contents of the reports is relevant to the work the Inquiry is charged with the duty of carrying out. I accept the analysis of relevance made in the submissions filed on behalf of the Inquiry which I have set out in some detail above.
50. I do not accept the point made on behalf of the Minister that because the material referred to in the reports in categories i - iii is already available or would be available to the Inquiry in other ways means, what is contained about it in the reports is not relevant. That is to confuse the form in which the material comes with the question of its relevance.
51. As to the objection taken on behalf of the Minister to the Inquiry seeing the expert opinion evidence which is contained in the reports, which the Minister asserts is irrelevant, in my view it also comes within the ambit of relevance when looked at in the context of the terms of reference of the Inquiry. Although the reports were commissioned in these proceedings, which had as their focus a claim in negligence, much of their content deals with matters which the Inquiry is obliged to investigate under its terms of reference.
52. I take into account the fact that the evidence has not been tested by this Court, but that does not affect its relevance. Each of the parties to these proceedings has instructed one of the experts, and if the reports from both experts are available, there is no imbalance or unfairness to the parties. Insofar as there are differences of opinion between the experts, that is clear on the face of the documents. It will be for the Inquiry to decide to what extent it requires their analysis and their opinion evidence to be tested for the purposes of its own investigations. The Minister as an interested party will be able to make such representations to the Inquiry on those matters as he thinks fit.
53. I turn now to the question of confidentiality. As I have already indicated, in my view the maintenance of confidentiality in these proceedings is an important factor, and is an important factor irrespective of whether or not there is a technical right to such confidentiality in the form of an implied undertaking as to the use of reports filed.
54. However, it is important to look at the root causes of the confidentiality. The first is the need to protect the plaintiffs from the public gaze. That is the reason for the restrictive orders made in these proceedings. The identities of the plaintiffs have been and must continue to be protected, which for similar reason includes identification of their family members. Similarly any other minor children named in the reports must be protected. But the anonymisation and redaction of the reports would serve to do that. I take into account the fact that there was an error in the redaction carried out by the parties' advocates in the reports already provided, but it was a single error, and has been corrected. I am sure that it has served to underline the importance of vigilance, and that the advocates for the Minister and the plaintiffs can be relied on to deal with any further redaction with all due care in the light of that experience. Insofar as hindsight has a benefit here, it will be to promote due diligence. I am satisfied that the redactions, properly carried out, would create the necessary protection.
55. The other aspect of confidentiality relates to the fact that the sensitive material which was discussed in the reports was, to a large extent, produced into these proceedings by the requirements of disclosure. However, I take into account the Minister's own point that all the sensitive material disclosed by the Minister would be available in any event in its original form to the Inquiry, and could be used and published by the Inquiry as it thinks fit, subject to the Inquiry's own protective protocols, and to the ability of the Minister to make representations to the Inquiry about its publication and other use. Thus I do not think there is, in truth, any significant invasion of confidentiality in relation to the parts of the reports which deal with sensitive material because the Inquiry is entitled to see and to use as it thinks fit all the sensitive material in any event.
56. The welfare and interests of the plaintiffs in my view point in favour of disclosure here. I take into account the express wishes of X and Z (whilst remembering that Z is still a minor) that, provided there is anonymity, they wish there to be disclosure to the Inquiry, and that the Inquiry should be able to make such use of the material as it thinks fit. I take into account the fact that both of them want there to be disclosure to help other children. As to the welfare of the plaintiffs, one of whom is still a minor and all of whom are very vulnerable, I also take into account the Guardian's view that it is in the best interests of Y and Z (and indeed also X) for there to be disclosure subject to anonymisation.
57. Although the Minister says I should be careful because the effects of disclosure and use of the reports by the Inquiry may have unpredictable effects, I am satisfied that with the careful redaction ordered by this Court, the curtain of privacy which I consider to be essential to protect these children's anonymity and thus their welfare, would be put in place. The redaction would be carried out before the reports are disclosed to the Inquiry. It is the responsibility of the advocates for the Minister and the plaintiffs to ensure it is properly done. Once it is done, the protection I view as necessary would be established. The Inquiry would not see, and therefore could not use or publish, the reports in their unredacted form. In those circumstances, the concerns expressed by the Minister about the way some unredacted or inadequately redacted material has been used by the Inquiry in the past simply would not arise. The Inquiry may also consider imposing some additional redaction of the reports in the context of its own remit. I take into account the fact that the Minister is an interested party to the Inquiry and is represented there. Any concerns that the Minister has about the use of the reports can be properly made there.
58. The welfare of children at large would, in my view, be served by disclosure and by the Inquiry being able to make such use of the material as it thinks fit. It is an Inquiry set up by the States with a public function of great importance; the furtherance of child protection on the Island. It is in the interests of other children that the Inquiry has and may use the relevant reports from these proceedings as it thinks appropriate in accordance within its remit. Insofar as there are other children named in the reports, they, of course, must also be protected by the cloak of anonymity through appropriate redaction before disclosure.
59. I pay full regard to the importance of encouraging frankness in a case which involves children, particularly vulnerable children. However, this is not one of those cases where a parent has made an admission in family proceedings of causing serious harm to a child which would potentially be of a kind to merit criminal prosecution. In those cases a tension arises because the Court has to balance competing interests which include the public interest in encouraging a perpetrator of abuse to a child to admit the abuse within confidential children's proceedings so that Court is best placed to make decisions for the future care of the children of that family, and the public interest in disseminating the information about the admission to the police with a view to the prosecution of the perpetrator (of which the cases of Re C, and Re X and Y are prime examples). That particular difficulty does not arise in this case.
60. Another factor which I take into account is the public interest in the administration of justice, and the importance of not erecting barriers between branches of the judicature. The Inquiry is not a part of the judicature but in my view analogous principles apply. It would be inimitable to justice here for information relevant to the subject matter of the Inquiry to be withheld from it.
61. I also have in mind the desirability of cooperation between the various agencies concerned with the welfare of children, which is particularly important in cases concerning children. Both the Court in these proceedings and the Inquiry are concerned with matters relating to children. I accept that cooperation is desirable. In that context, I also take into account the fact that the Minister is responsible for the provision of important services to the plaintiffs and to many children on the island, and no doubt wishes to work cooperatively with the Inquiry.
62. An important feature here is the public interest in assisting the work of the Inquiry. I have already referred to its work when considering whether the welfare of children at large would be served by disclosure. I have noted the opening remarks of its Chairman and its terms of reference with care. In my view, there is a strong public interest in making the reports available to the Inquiry, and I accept what is said on behalf of the Inquiry in this respect (for example, in the passages which I have set out at paragraph 18 i. and 18 iv. above).
63. The Inquiry already has the expert reports which predate 23rd October, 2014, which were disclosed to them without objection, and without appeal. It cannot be satisfactory for there to be only partial disclosure. That has the potential to be misleading. It is important that the Inquiry should have the full and final analysis which each expert has conducted.
64. For all these reasons I am left in no doubt that the balance comes down firmly on the side of the disclosure of the reports which post-date the Act of Court of 23rd October, 2014, to the Inquiry provided they are suitably redacted, and I shall make provisions for redaction similar to those in that order.
65. As to whether I should place any limits on the use of the disclosed reports, I have considered all the arguments very carefully. The reports will only be provided to the Inquiry after they have been redacted in the way I consider necessary to protect the plaintiffs and other children. I do not propose to limit the way the Inquiry uses that material. There is an important public interest here in allowing the Inquiry to fulfil its remit in the way it has been charged by the States to do. I cannot second guess, nor should I seek to control, the way the Inquiry carries out its functions. In reaching this decision I am mindful that the Inquiry has its own protective protocol and procedures and that the Minister, as an interested party, has the right to make application about the use of material to the Inquiry. In my view that forum is the one where those decisions should properly be made.
Authorities
In the matter of the X children [2007] EWHC 1719 (Fam).
In the matter of X [2003] JLR 111.
In the matter of the X children [2007] (supra).
Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76.
Appleton v Gallagher [2015] EWHC 2689 (Fam).
Prudential Assurance Co v Fountain Page [1991] 1 WLR 756.
Re EC (Disclosure of Material) [1996] 2 FLR 725.
Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam).
In the matter of D (Disclosure: Private Law) [2009] JLR Note 18.