High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation no. [2001] NIFam 18

Ref:    

GILC3487

 

 

 

Judgment: approved by the Court for handing down

Delivered:

31.08.2001

(subject to editorial corrections)

 

 

   

                                               

              

    IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION   ------------   RE: S (Disclosure of Documents held by the Police)   ------------

 

GILLEN J

            Judgment in this matter is given in chambers and leave to report this judgment is given on condition that nothing be reported which could lead to the identification of the child concerned or of any of the parties.

            This matter comes before the court on foot of an application for directions in existing family proceedings in the case of a child S by a Community Health and Social Services Trust which I do not propose to name (hereinafter called "the Trust") in Form C2 under the Children (Northern Ireland) Order 1995 ("C2 application") and which is couched in the following terms:

"1.       The order or directions applied for:

 

(i)        Leave to issue a subpoena duces tecum in respect of the attendance of Inspector (G) of the RUC at the High Court of Justice on Friday 22 June 2001 and bring all the following documents:

 

(a)        all expert reports including medical, pathology and related reports arising from the RUC investigation into the death of (D) and into an injury to (S).

 

(b)       all transcripts (if available) of all interviews conducted by the RUC with (Mr B) and (Mrs B) in relation to the death of (D) and an injury to (S)."

 

            In terms this is an application for an order requiring the police to disclose material and is made to the court which is seised of care proceedings in the matter of S and which have been instituted by the Trust.

            I consider that the Trust have adopted the proper procedure in seeking such disclosure.  The issue of the subpoena is the correct procedure as the police are not a party to the care proceedings.  This approach received approval in Re: M (Child Abuse: Video Evidence) (1995) 2 FLR 571 where the applicant authorities sought copies of interview video tapes from the police.

            Sir Stephen Brown P observed at page 573G:

"There has been a mis-understanding as a result of certain observations made by Johnson J in the case of Re: R (Child Abuse: Video Evidence) (1995) 1 FLR 451 at page 453, which seemed to suggest that a court might have a general inherent power to order what would amount to discovery of documents including video recordings held by police forces – police forces, I should say, who were not parties to the proceedings before the court.

 

It is clear from the judgment of Balcombe LJ in the case of D v D (County Court: Jurisdiction: Injunctions) (1993) 2 FLR 802 at page 814 that the only power available to the court to compel the production of documents held by a third party is by the issue of a subpoena duces tecum."

 

            The judge continued at page 575H:

"I have no doubt that this is the appropriate procedural course to take.  The Commissioner is not a party to these proceedings, he is a third party and, as has been pointed out by Balcombe LJ, there is no power to order discovery of documents held by a third party.  The appropriate course, therefore, is to issue a subpoena duces tecum."

 

            The background to this case as indicated to me by the Trust and as presented in a report from the guardian ad litem is as follows:

1.         According to reports supplied by the Romanian Adoption Committee dated 11 May 2000 - the only source of information to which the parties have access regarding the circumstances of S's birth and information on his family - S and his twin brother D were born on 28 August 1999 in Romania.  Between 22 October 1999 and 28 March 2000 S and D spent a period in an institution although it is unclear whether or not either of them were cared by their birth mother between 28 August 1999 and 22 October 1999.  The document is also silent on where D and S were cared for between 28 March 2000 and July 2000 when they were adopted under the aegis of the Romanian Adoption Committee.

2.         It appears that on 19 July 2000 S and D arrived in Northern Ireland in the care of Mr B & Mrs B.  Subsequently in February 2001 the guardian ad litem alleges that Mr B & Mrs B informed him that they had gone to Romania following a home study which was completed by Craigavon and Banbridge Health & Social Services Trust which stated they were suitable adoptive parents and proceeded to adopt D and S in Romania, the whole adoption process costing approximately $24,000.

3.         The chronology of events outlined by the guardian ad litem records that on 10 August 2000 Mr B & Mrs B informed the Family Placement Team of the Trust that D and S had arrived in Northern Ireland.  On 30 August Social Services from the Family Placement Team visited their home.  Thereafter on 3 October 2000 Mr B & Mrs B confirmed in writing that S and D were residing with them pending an application by them for adoption in Northern Ireland. 

4.         The next record in the chronology of events provided by the guardian ad litem records that on 23 October 2000 D was pronounced dead on arrival at Craigavon Area Hospital, "presumed diagnosis meningitis". 

5.         On 5 November 2000 S was admitted to Craigavon Area Hospital and allegedly diagnosed with a fractured skull together with associated swelling and bruising to the eye.  The chronology goes on to record "following a skeletal survey S was also discovered to have a fracture of the clavicle which pre-dated the injury to the skull.  (Mr & Mrs B could offer no explanation as to the cause of the injury to S.)"

            It is alleged by the guardian ad litem that Mr B admitted to a hospital social worker that he had struck S on the side of the head with a clenched fist.  On 10 November 2000 S was discharged from hospital and placed in foster care with the agreement of Mr B & Mrs B.  Thereafter S was provided with accommodation by the Trust pursuant to Article 21 of the Children (Northern Ireland) Order 1995 ("the 1995 Order"). 

 

 

1. .         The chronology provided by the guardian ad litem records thereafter

 

as follows:

 

"The RUC Care Unit indicate that they intend to make further enquiries into the death of D.  Paediatric radiologist report (sic) multiple fractures to D's ribs and fracture to his left arm. 

 

13 November 2000 - RUC Care Unit report that pathologist is stating that meningitis was not the cause of death for D. 

 

15 November 2000 - Mr B arrested – he admitted assault on S.  However he denied any involvement in the death of D. 

 

30 November 2000 - D's body was exhumed as directed by the Coroner.

 

8 January 2001 - Guardian ad litem appointed.

 

9 January 2001 - PG, solicitor, appointed to represent  S.

 

15 January 2001 - Matter appears before Craigavon Family Proceedings Court sitting at Newry and an interim care order is granted.  Mr B & Mrs B were joined as party to the proceedings.

 

8 February 2001 - Hearing at Craigavon Care Centre – matter transferred to the High Court. "

 

7.         On 13 February 20001 the guardian ad litem met with Mr & Mrs B.  The guardian alleges that Mr B stated that on "the night that he injured S he had been grieving for the loss of D and had been up three or four times during the night as S was teething".  It is alleged that he stated he was tired, became upset by S's refusal to take Calpol and punched S on the side of the head with his fist resulting in a fracture of the child's skull and bruising to his right eye.  Mr B stated he had no knowledge of how S had broken his clavicle.  Mr & Mrs B both deny any knowledge of how D sustained his injuries and Mrs B stated she was not aware until her husband informed her on 8 November 2000 that he was responsible for the injury to S.  Both parents stated that this was out of character and was a one-off isolated incident which they both deeply regret.

I emphasise that this chronology of events has been taken from the case presented by the Trust and the guardian ad litem and at this date I have made absolutely no finding of fact whatsoever on any of the relevant matters.  I remain entirely open-minded as to any of the allegations that have been made. I have set out this chronology simply as a background to the application which is now made by the Trust and to explain the factual circumstances upon which my decision is founded.

The Trust have obtained an interim care order in respect of S and the child is now in the care of foster parents.  There is pending an application by the Trust under Article 50 of the 1995 Order for a care order in respect of S and an application to reduce the current level of supervised contact between S and Mr B & Mrs B.  Inter alia, the documents now sought by the Trust include:

(a)        a post mortem report on deceased child D;

(b)       a radiological report prepared by Dr P, a consultant paediatrician on D;

(c)        other medical reports and related reports from hospital employees arising out of the admission and treatment of D prior to his death;

(d)       statements made to the police by S arising out of the alleged assault;

(e)        any statements made by any medical witness or hospital or medical employee arising out of the injuries allegedly sustained by S;

(f)        all notes and records arising out any interviews between the police and Mr B & Mrs B concerning the death of D or the injuries sustained by S.

Inspector G of the RUC, the officer in charge of investigating the death of D and the injuries to S, gave evidence before me.  He informed me that he has completed his investigations and the papers have now been submitted to the DPP.  He told me that he had spoken to a representative from the DPP, namely Trevor Browne, who had informed him that disclosure of the documents as sought by the Trust would not have any effect whatsoever on the decision taken by the DPP and in particular would not prejudice the making of any such decision.  However, Inspector G informed me that the departmental adviser to the police had advised him to claim public interest immunity on the grounds that the papers were still with the DPP.  I should add at this stage that prior to the hearing of this case I had caused the DPP to be appraised of the forthcoming application and had afforded the office the opportunity to be represented before me for the purpose of making submissions if it was so wished.  No such representation was made before me.  Inspector G, who I might say gave his evidence in an extremely balanced and helpful manner, informed the court that it probably would be a number of weeks before directions in this case would be forthcoming from the DPP.  He accepted that the documents outlined by the Trust were in the possession of the police and the DPP.  He went on to state that in the course of interviews with the police, the contents of the post mortem report and the gravamen of all the other medical reports will already have been disclosed to Mr B & Mrs B and he saw no prejudice accruing to the investigation by the disclosure of these documents.

The Trust case for disclosure can be summarised as follows:

(a)        All of these documents are highly relevant to the decision as to whether or not a care order should be granted and contact reduced.

(b)       There currently is in force an interim care order in respect of S.

(c)        Time is of the essence in this case.  S is currently with foster carers and is beginning to make attachments and is bonding with that family.  A care plan needs to be urgently finalised.  Counsel argued that delay will occasion potential prejudice to the welfare of the child but also is likely to prejudice the efforts of  Mr B & Mrs B to have the child returned. 

Mr Long QC, who appeared on behalf of Mr B, in terms left the matter entirely in the hands of the court.  Counsel on behalf of Mrs B adopted a similar approach.

            The guardian ad litem echoed the submissions of the Trust, underlining the danger of criminal proceedings holding up the resolution of the child care issues.  Delay has already occurred in this case and the gathering of expert evidence could further serve to occasion delay.

The law

            The following are the legal principles that have governed my decision:

1.         Where the police are not agreeable to disclosing a document in their possession to a Trust, that Trust may apply to the court for an order against the police (or the Director of Public Prosecutions) seeking disclosure of the document on the ground that information contained within it may assist the Trust in discharging its statutory duty with respect to a child who is the subject of care proceedings.  In Nottingham County Council v H (1995) 1 FLR 115 where a similar factual situation arose, Johnson J said at page 120C:

"The primary object of the local authority in the applications before me was that the disclosure of the documents would the better enable the local authority to make the best informed proposals about the future of these children to put before the court.  The documents might or might not be used in the proceedings.  I have considered whether such an objective is a legitimate basis on which to make the order asked.  I am satisfied that it is.  Because of the provisions of the Children Act 1989 and in the special circumstances of proceedings such as this, it may, I think be possible for questions of disclosure of documents held by the CPS or police to be dealt with in two stages.  The first stage, as here, could be the disclosure by the police or the CPS to the local authority.  The second stage which might or might not arise would be disclosure by the local authority, the police or the CPS to other parties including the parties."

 

            I respectfully adopt that analysis of the law.  In this instance I have concluded that the Trust have a legitimate objective in seeking to obtain disclosure of the documents outlined above and I have no doubt that potentially they are highly relevant to the court's consideration of an application for a care order and issues of contact.  The matters to be investigated by the Trust are of considerable gravity and these documents are likely to be useful and significant.

2.         The appropriate procedure and mode of application has been adopted by the Trust in this instance (supra).

3.         I recognise that there may well be cases in which disclosure, even to the Trust, would potentially be prejudicial to the public interest because of the nature of the material or the identity of those suspected.  In such a case the police or Director of Public Prosecutions should be able to resist disclosure on the basis of the particular circumstances.  Normally at the second stage, if a party such as Mr B & Mrs B or a parent, makes an application to the court for disclosure by the Trust of documents which it has received from the police, whether voluntarily or by order of the court, then such application will involve a balance to be achieved between the interests of those seeking disclosure and the public interest in maintaining the confidentiality of such records.  But at this stage conventionally disclosure will only be ordered if the documents are found to be of real importance to the party's case (see Re: M (A Minor) (Disclosure of Material) (1990) 2 FLR and Re: A (Minor) (Disclosure of Material) (1991) 2 FLR 473 and in light of the guidance given by the House of Lords in Air Canada v Secretary of State for Trade (No 2) (1983) 2 AC 394.

            It is important to emphasise that these proceedings deal with the first stage ie disclosures by the police to the local authority.  For the purpose of guidance I should indicate that normally if the second stage arises, eg that Mr B & Mrs B were to make an application to the court for disclosure by the local authority of the documents which it had received from the police by order of this court, then such an application will be determined on the basis that I have mentioned.  It would be wrong for the court normally to determine the application in the absence of representations from the police or DPP when disclosure had been achieved only by court order or, if given voluntarily, had been on the condition that no further disclosure should take place.  The test to be applied in deciding whether to direct disclosure will be fairly strict and the discretion will be exercised in light of the power of a guardian ad litem in specified proceedings to examine the local authority social work records.

            I have decided in this case that disclosure of these documents would not be potentially prejudicial to the public interest.  I am satisfied that the disclosure will not prejudice or inhibit in any way a pending prosecution or investigation and I am confirmed in this view by the absence of any submission to the contrary by the DPP or indeed by Inspector G.  The court has been informed that Mr B & Mrs B are aware of the gravamen of the contents of all of these documents and it is important that the local authority have a similar knowledge in order to assist it to make the best proposals for the future of this child. 

4.         Notwithstanding the fact that this is an application made only by the Trust, it seems to me that in the unusual circumstances of this case where disclosure is not seriously opposed by any of the parties to the proceedings and where the police opposition to any of the parties obtaining disclosure is, if I may so, somewhat perfunctory albeit responsibly mounted, then in the interests of encouraging expedition in the hearing of the case and in saving costs, I should at least give directions to the parties which more properly perhaps belong to the second stage referred by Johnson J (supra).  Firstly, it seems to me inconceivable that the guardian ad litem should not be privy to these documents if the Trust is to obtain them.  Accordingly I intend to direct that these documents should be disclosed to the guardian ad litem as well as to the Trust.  Secondly, subject to the right of the Trust and the guardian ad litem to raise before me any question of prejudice to the child which might arise from perusal of the documents, it is my view that at this stage the legal representatives of Mr & Mrs B should also obtain disclosure of these papers.  The evidence before me is that Mr & Mrs B have already been made fully aware of the contents of the documents and that these documents are clearly of real importance to their case.  Accordingly I intend to issue a direction that these documents may be released to the legal representatives of Mr B & Mrs B if the Trust and the guardian ad litem consider it appropriate.  If this does not occur, then of course Mr B & Mrs B are free to mount a disclosure application before me. 

5.         In considering this matter I have taken into account Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (set out in Schedule 1 to the Human Rights Act 1998) (The European Convention on Human Rights).  Article 6 imposes a requirement that the hearing will be procedurally fair.  Prima facie in family law cases the parties are prima facie entitled to see documentation (csee McMichael v UK (1995) 20 EHRR 205).  There is authority of course for the proposition that there is nothing in domestic or Human Rights jurisprudence to suggest that use of material not disclosed to the defence in an ex parte public interest immunity hearing would constitute a breach of Article 6 of the European Convention on Human Rights, guaranteeing the right to a fair trial (csee R v Smyth (Joe) Times Law Reports (20 December 2000).  I leave open the issue of whether or not complaints that a local authority's claim to public interest immunity in respect of documentation will constitute a breach of the rights of parents since that issue does not arise in this instance.  I am however conscious of the need to protect not only the child who is the subject of these proceedings but also all the parties.  Article 8 of the European Convention on Human Rights embraces a right to respect for private life.  Where there is to be a disclosure that potentially interferes with this right it is only justified if there are effective and adequate safeguards against abuse.  It may well be that the documents of which I have ordered disclosure in this case contain matters inimical to the interests of Mr & Mrs B or even personal and confidential material about them.  The particular safeguards in any case are dependant  upon the facts of each case.  In this instance those acting on behalf of the child and indeed Mr B & Mrs B have a right to be concerned about the risk of public dissemination of the contents of these articles.  In Z v Finland (1997) 25 EHRR 371, where two doctors were compelled to give evidence of matters about the applicant's medical history contained in their medical records, the court approached this fundamental issue at page 405 (paras 94-99):

"94.     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.

 

95.       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 persons enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention.  …  The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention.

 

…

 

99.       As to the issues regarding access by the public to personal data, the court recognises that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the interests of publicity of court proceedings, on the one hand, and the interests of a party or third person in maintaining the confidentiality of such data on the other hand.  The scope of this margin will depend on such factors as the nature and seriousness of the interests at stake and the gravity of the interference."

 

Adopting the principles in Z v Finland (supra) Munby J in A Health Authority v X and others (2001) 2 FCR 634 at page 653 said:

"The courts approach in Z v Finland … suggests, however, that typically what will be required is:

 

(1)        the maintenance of the confidentiality of the documents themselves – the documents should not be read into the public record or otherwise put in the domain;

 

(2)        the minimum public disclosure of any information derived from the documents; and

 

(3)        the protection of the patient's anonymity, if not in perpetuity then at any rate for a very long time indeed."

 

In the context of that case which dealt with medical records, Munby J went on to say:

"Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority (in this court of course for this purpose of public authority) to act in a way which is incompatible with a Convention right.  It follows therefore that it is in principle the duty of every public body (including the court) which transfers or authorises the transfer of medical records from a doctor to a public body or from one public body to another to ensure that the confidentiality of the records is preserved and that there are effective and adequate safeguards against abuse of the kind mandated by Z v Finland … ."

 

            For that reason I intend to confine the extent to which these documents are disclosed and to ensure that they are kept under the personal control of the Chief Executive of the Trust and guardian ad litem.    Accordingly in the case of the Trust I intend to order that the documents shall be kept under the direct control of the Chief Executive of the Trust and shall only be released to counsel representing the Trust and to those social workers responsible for S's care.  In the case of the guardian ad litem, he or she shall keep strict control of the above documents and shall reveal them only to the legal representatives.  At this time I direct that the documents may be released to the legal representatives acting on behalf of Mr B and Mrs B should the guardian ad litem and the Trust consider this appropriate.

            Accordingly my orders are as follows:

1.         That the RUC shall release to the Chief Executive of the Trust and to Sean Mulligan of the Northern Ireland Guardian Ad Litem Agency, the following documents in relation to the child D, deceased:

(a)        the child's post mortem report;

(b)       Dr P's report and statement;

(c)        any other medical report and/or statements arising out of the treatment and death of D.

2.         The RUC shall release to the Chief Executive of the Trust and to Sean Mulligan of the Northern Ireland Guardian Ad Litem Agency, any reports and/or statements in relation to the child S which are in their possession.

3.         The RUC shall release to the Chief Executive of the Trust and to Sean Mulligan of the Northern Ireland Guardian Ad Litem Agency transcripts of all interviews conducted by the police with Mr B & Mrs B in the possession of the police relevant to S and D.

4.         The above documents released to the Chief Executive of the Trust shall be kept under the direct control of the Chief Executive of the Trust and shall only be released to counsel representing the Trust and to those social workers responsible for S's care.

5.         The guardian ad litem shall keep strict control of the above documents released to him and shall reveal them only to his legal representatives.

6.         The above documents may be released to the legal representatives acting on behalf of Mr B and Mrs B should the guardian ad litem and the Trust consider this appropriate. 

7.         The costs of Mr B & Mrs B, assisted persons, and of the guardian ad litem are to be taxed in accordance with the provisions of Schedule 2 to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.  I certify for the attendance of senior counsel on behalf of GB. 

            I adjourn the matter further until 22 June 2001 for further consideration.


 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   FAMILY DIVISION   ------------   RE: S (Disclosure of Documents held by the Police)   ------------       JUDGMENT       OF       GILLEN J       ------------