B R & C (CHILDREN) [2002] EWCA Civ 1825

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
PONTYPRIDD COUNTY COURT
(HIS HONOUR JUDGE WOODWARD)
[2002] EWCA Civ 1825Case No B1/2002/2163/A; 2218; 2163Venue Royal Courts of Justice, Strand, London, WC2, Tuesday, 12 November 2002
Between
B R & C (CHILDREN)
Before
The PresidentDame Elizabeth Butler-SlossLord Justice ThorpeLord Justice Scott BakerMR J TILLYARD QC AND MR M LEWIS (instructed by Messrs Lyndsay Ford, Caerphilly CF83 1WS) appeared on behalf of the GuardianMR C JOHN (instructed by Messrs Hugh James, Bargoed CF81 8PA) appeared on behalf of the FatherMISS S OWEN (instructed by Bridgend County Council, Bridgend CF 31 4WB) appeared on behalf of the Local AuthorityMR M EVERALL QC (instructed by Messrs David Prosser & Co) appeared on behalf of the Respondent Mother}Date 12 November 2002
[1]Monday, 11th November 2002 THE PRESIDENT: I will ask Lord Justice Thorpe to give the first judgment.

LORD JUSTICE THORPE: There are contested public law proceedings in the Pontypridd County Court, the parties to which are the Bridgend County Borough Council, as applicants, CB as first respondent, RB as second, VR as third, DC as fourth and the four children in question, L, S, M and D as fifth respondents by their guardian ad litem.

[3]The first respondent is mother of all these four children. R is the father of S and M, V is the father of L and DC is the father of D. As for the children, L is 6, S is 4, M is 2 and D is about 10 months of age.[4]The local authority, who have filed a respondent's notice in this appeal, have included behind the notice a helpful factual chronology which discloses a familiar and worrying picture of disorder, with various members of the family, both adult and child from time to time manifesting marks of injury sustained within the turbulent family life. It is unnecessary to say anything more about the core issues since they all fall for investigation and decision before Judge Woodward in the county court at a trial fixed to commence next Monday and to last for about two weeks.[5]The issue that brings this case to the Court of Appeal is revealed by a much briefer chronology (page 2 of the bundle) filed on behalf of RB.[6]An order was made in the county court for psychological reports to be prepared on both C and RB. The case came before Judge Woodward for directions on 5 July and on that occasion he made what I would regard as a conventional directions order to advance the case toward the final hearing. The order has no less than 13 paragraphs and the only one that it is necessary for me to record in this judgment is paragraph 2, to the effect that CB and the three fathers of the various children disclose their criminal records (if any) and their medical records, including any psychiatric records, by 31 July.[7]The undisputed fact is that CB did not comply with that order by making disclosure of her medical records. She was accordingly in contempt, and it certainly would have been open to the applicant local authority to have issued proceedings for enforcement. However, no such proceedings were taken.[8]The next relevant date to record is 26 September when the case was listed before His Honour Judge Hugh Jones, the designated family judge of the court, for the renewal of the local authority's interim care order. On that occasion it seems that there was a general discussion concerning the mother's breach of the order of 5 July. Seemingly it was said that the order of 5 July had been made without any very profound investigation or submission, and that the mother had expressed her reluctance to disclose her medical records through anxiety that they might be misused against her by the fathers of her children, and in particular by R, with whom she said she had had a particularly violent relationship. Judge Hugh Jones directed that the parties should each file skeleton arguments and that the issue should be listed before Judge Woodward on 7 October.[9]The guardian ad litem for obvious reasons was reluctant to initiate contempt proceedings against the mother, but on that afternoon issued a subpoena directed to the South Glamorgan Health Authority requiring them to produce the mother's records to the court on 7 October.[10]In preparation for the hearing skeleton arguments were filed on behalf of the local authority, on behalf of the first, second and fourth respondents, and on behalf of the guardian ad litem. Those who sought the due performance of the order of 5 July relied in their respective skeleton arguments upon recent decisions in the Family Division by Munby J, and in particular his decision in Re B (Disclosure to other Parties) [2001] 2 FLR at 1017.[11]The skeleton argument submitted on behalf of the mother threw down a radical challenge to the enforcement of the order of 5 July or indeed to its reaffirmation. The skeleton argument contains a number of startling assertions. In paragraph 3 it was submitted that:
"The Children Act 1989 is powerless to compel disclosure of parties' medical records."
[12]In paragraph 4 it was asserted:
"In children cases there is no general power in the Court to garner documentary evidence of its own motion."
[13]In relation to the witness summons that had been issued on 26 September it was submitted in paragraph 7:
"The mother's case is that the issue of a summons is effectively an abuse of privilege. In any event the request is largely irrelevant, fishing, speculative and oppressive, which entitles a Court to set aside the summons - Senior v Holdsworth ex parte Independent Television News Ltd [1975] 2 All ER 1009. The Guardian, who pursues the application, having failed to identify how the records are relevant to the issues in hand, the inference drawn by the mother is that this is an expensive irrelevant fishing expedition."
[14]The skeleton then referred to Article 8 of the European Convention and asserted her rights to confidentiality. It was asserted that any qualification of that right arising under Article 8(2) was not engaged since the disclosure did not affect national security, did not strike at public safety, and did not strike at economic wellbeing.[15]The skeleton then sought to rely on Article 10 of the Human Rights Act, and in particular Article 10(1), to the effect that everyone has a right to freedom of expression. It is said that the material "freedom of expression" must be interpreted on a wide and liberal basis and must encapsulate a patient giving full disclosure of confidential information to a medical practitioner. The skeleton then referred to the decisions of Munby J and sought to distinguish those authorities as having any application to the issue before the judge.[16]Those who sought the performance of the order of 5 July relied upon the absolutely fundamental and manifest proposition that in public law proceedings the adult parties owe a duty of full and frank disclosure and the court has a corresponding power to enforce that duty: furthermore, that the court, in its quasi inquisitorial function, has the widest powers to bring into the arena of the litigation anything that might be relevant to the discharge of the court's duty to protect children from harm and abuse and to advance their welfare. However to the challenge, where in the rules do we find the court's power to order disclosure of the medical records, those on that day appearing were not able to provide any immediate answer or to point to any direct authority.[17]Now that is not in itself surprising, for there are many propositions within the sphere of the Children Act that are so universally respected and applied that it is not, when the challenge is issued, easy to produce authority. In a sense the more general, the more obvious the proposition the harder is it to identify the source of its authority.[18]The consequence was that the judge on this occasion posed for himself these questions: first, has the court the power to make an order directing the mother or a third party to disclose? Second, if so, should an order be made? On the first question the judge recorded that no authority directly on point had been discovered by any of the parties and that he himself knew of none. He said that if an order were made against the mother then the court would have to consider possible default and that might lead to the unthinkable development of a committal order. He therefore turned to consider whether an order could be made against the health authority. Again he said that there was no direct authority that had been discovered, but he concluded that the Civil Procedure Rules permitting the issue of a witness summons against a third party in an appropriate case clothed the court with the power to order discovery of documents which could have a critical effect on the outcome of a case where the future of children is at stake.[19]The judge then turned to the second issue that he had posed for himself - whether he should exercise the power. He balanced the consideration that if no order went the impression might be given that the mother was seeking to conceal important or relevant material; secondly, he added that if the order were not enforced there would be a semblance of an uneven playing field between the mother and the other adults who had made disclosure. He referred then to the argument that the children's right to a fair trial demanded that an order be made so that there would be all the information before the court which would be relevant to the judge's decision. On the other hand he weighed the submissions advanced on the mother's behalf that she had her right of privacy under Article 8, and he particularly referred to a decision of Munby J in Re B , which I have already cited. He came to the conclusion that the balance for him was best struck by ordering that the mother's medical records should be disclosed to the experts alone - both the medical clinical psychologist who had been instructed to prepare the psychological profiles of the adults, and the family centre, which had been instructed to advise on ultimate disposal. He said that the experts would see the records and therefore the court and the parties could be satisfied that if there were anything untoward against the mother in the records that would be noted by the experts and they would have the opportunity to comment upon it in their report.[20]Accordingly the order that was drawn to reflect his judgment is to this effect: the mother do within seven days disclose the medical and/or psychiatric records produced to the Pontypridd County Court by the South Glamorgan Health Authority to the clinical psychologist for the purposes of the preparation of her report; and secondly, that she produce those records to the family centre to enable them to prepare their report. It was said in paragraph 5 that the disclosure was to be on the basis that neither the psychologist nor the family centre was to disclose the reports to the other parties in the litigation without further order of the court.[21]That outcome was inevitably regarded as profoundly unsatisfactory, not only by the other parents involved in the litigation, but also by the local authority and the guardian ad litem. They made the obvious points that the proper conduct of the trial would be hobbled by these restrictions, the experts would not be in a position to write freely and completely on all relevant aspects; and the rights of investigation at trial by examination and cross-examination would be similarly restricted to a degree that could only produce artificiality and injustice.[22]Accordingly the guardian ad litem lodged with this court an application for permission, stressing the urgency of the application, given the fixture for 18 November. I granted permission on paper on 21 October. A week later another application arrived for permission, this time lodged on behalf of the father. That was put before another Lord Justice, who directed that the application should be adjourned for an oral hearing on notice. In giving that direction she was not informed that permission had already been given to the guardian ad litem by me in the previous week. Subsequently the local authority entered the arena with their respondent's notice which supported the criticisms of the guardian and of the father. Finally, both VR and DC have written to the court through their solicitors expressing their unqualified support for the guardian's appeal and excusing themselves from representation in order to save unnecessary legal costs.[23]The preparation of this appeal has been rendered unnecessarily difficult by the following facts. The guardian ad litem lodged with the court a helpful core bundle at the end of October containing the essential material extracted from the trial bundle together with the authorities on which the guardian intended to rely. We then received a second bundle - this time from the father - again with the documents that the father's team thought to be relevant and with an annexed set of authorities, some of which merely duplicated those in the guardian's bundle. After that we received from the local authority their bundle. That contained their essential submission in their Respondents Notice, their grounds of appeal, their skeleton argument and the chronology to which I have already referred. They then appended their authorities. Those were not authorities that had been included in the first two bundles received, and no criticism can be addressed to the contribution of the local authority which was entirely helpful and entirely appropriate. Finally, we have a bundle which has been submitted on behalf of the respondent mother. That contains the skeleton argument by Mr Everall QC on her behalf, and some authorities that he adds, which are in the main not authorities that appear in the earlier bundles. But it is perfectly obvious that public money would have been saved had there been some intelligent collaboration between the parties to produce a single core bundle and a single bundle of authorities.[24]The disposal of the appeal itself is a relatively simple matter. A number of propositions emerged clearly at the end of a morning which was devoted to investigating and understanding this muddled situation. The first is that the judge hearing the argument on 7 October was plainly denied the assistance that he should have had in seeing clearly the issue for the court. The true issue for the court on that day was simplicity itself. An order had been made on 5 July. The order required the mother to do something within a specific period. She had been before the court on 5 July by solicitors and counsel. The order had not been appealed and she was clearly in contempt. It seems to me to be almost too obvious to state that the onus was therefore upon her to explain herself, to explain her non-compliance and to throw herself on the court's indulgence, perhaps seeking some reduction in the obligation imposed upon her by the existing order. The suggestion that it was for some other party to the proceedings to discharge some onus of proving entitlement was simply Alice in Wonderland.[25]Equally, it was or should have been obvious beyond discussion that, quite apart from the existence of the order of 5 July, there is upon parties to public law Children Act proceedings a general duty of full and frank disclosure. The proposition is so obvious as to scarcely require authority. Not only is that plain from a clear line of cases, both in relation to Children Act proceedings and also in relation to adoption proceedings, but also there is a Practice Direction in being, as the local authority have emphasised in their written submissions. The line of authority to which I refer has its origins in the court's powers in wardship, but, in relation to proceedings brought under the Children Act 1989, it was clearly established as long ago as Re B (A Minor) (Disclosure of Evidence) [1993] FLR 142 that the court will only withhold evidence from disclosure to another party if such disclosure would be so detrimental to the welfare of the children under consideration as to outweigh the normal requirements for fair trial that all evidence must be disclosed so that all parties can consider it, and, if necessary, seek to rebut it. That decision was expressly approved by the House of Lords in D (Minors) (Adoption Reports Confidentiality) 1996 AC 593 , a case which considered the obligations of disclosure in relation to adoption proceedings.[26]The practical management of situations in which a party seeks to assert that disclosure would be either detrimental to the welfare of the child, or, alternatively, detrimental to the interests of the party themselves, were considered by Johnson J in Re C (Disclosure) [1996] 1 FLR 797. In that case he suggested the procedural route that any application for relief from the duty of disclosure arising in the county court should be transferred to the High Court and should be determined on notice to the parties from whom the material is sought to be withheld. He emphasised that any party from whom information was to be withheld must have the opportunity of making representations. All that was considered and approved by this court in Re M (Disclosure) [1998] 2 FLR 1028. Unfortunately that line of authority was simply not before the judge.[27]The Practice Direction, to which I have referred, is to be found at [1995] 1 FLR 456. The Practice Direction was issued by Sir Stephen Brown, President, on 31 January 1995. It is necessary only to record paragraph 4:
"It is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure in ancillary relief applications and also in all matters in respect of children."
[28]The judge in his judgment said that he had found most helpful the decision of Munby J in Re B . We have, during the course of this morning's argument had our attention drawn to various paragraphs in what is a lengthy and comprehensive consideration of the impact of the Human Rights Convention on applications to limit the ambit of disclosure on the grounds that it would violate privacy.[29]His extensive consideration of the law shows Munby J giving proper weight to the general principle established by their Lordships in Re B and simply weaving in the necessary obligation of the court to have regard to rights arising under the relevant Articles of the Convention. Nothing that he had to say in that case seems to me to be open to any criticism, nor to undermine in any way the fundamental principle that disclosure is the general rule. Indeed that point is manifest from the final and emphatic paragraph of his judgment, when he said:
"Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant's access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary."
[30]Thus, it seems to me that the line of authority to which I have drawn attention continues to regulate the obligations and the rights of the parties, including their Convention rights, in relation to any disputed issue of disclosure, and the extent of any restrictions to be placed on disclosure.[31]Mr Everall, who has given the court great assistance today, has gone to the trouble of researching what was in fact the technical authority that the judge sought on 7 October. He has drawn attention to the fact that Rule 1.3(1) of the Family Proceedings Rules 1991 imports the rules of the Supreme Court as they were at the relevant date, April 1999. The relevant rule imported therefore is, for High Court proceedings, Order 24 of the Rules of the Supreme Court and, for county court proceedings, County Court Rules Order 14. That technical illumination was, in my opinion, hardly necessary in front of the judge in the Pontypridd County Court. The whole issue was diverted from its proper categorisation and all sense of proportion was seemingly destroyed by the manner in which the issue was argued. The submissions that have been addressed to us by Mr Tillyard QC for the guardian, supported by Miss John for the father and Miss Owen for the local authority, are really unanswerable. Mr Everall has done his best and he has sought to rely upon the decision of Munby J in Re B , but on any fair reading that authority is all against him in the circumstances of this case.[32]Mr Everall has sensitively sought to suggest that the mother's reluctance relates not to anything in the records which might go to her prejudice at next week's trial. He says that it is simply sensitive material relating to unhappy experiences that she had in her adolescence when exposed to relationship with a stepfather, and that her fear is that any detail of that chapter of her life would be used against her by one or other of the parties to the proceedings. Mr Everall has sought to suggest that disclosure to the professionals would be acceptable, but not disclosure to the other parties to the proceedings.[33]However, the situation is too plain to allow of any other disposal but to set aside the order made by the judge on 7 October. If there is an issue at this late stage it seems to me that the only principled way in which it can be brought before the court is to allow the mother an opportunity to apply at the outset of the trial to identify within the ordered disclosure what she seeks to withhold from any other party. It would be unthinkable, in my opinion, to put the clock back to the degree that Mr Everall has from time to time sought, as though the order of 5 July had never been made, as though this were an initial application to a trial judge to place restrictions on the general duty of disclosure.[34]Before concluding this judgment I would like to say two things. The first is that it is important that the fundamental principles on which Children Act cases are decided should not be lost sight of or obscured by a multitude of decisions which grapple with problems arising out of the Human Rights Act. It is, I appreciate, difficult for practitioners, given the scale of the material within the specialist reports, to identify the precise case that meets the precise point required for decision on any particular day. But the diversion of the issues in this case has led to an extraordinary waste of time, energy and public money, multiple applications to this court for permission, a hearing at which we have leading counsel for two of the parties and six members of the Bar in court. Apart from the restraint shown by two of the parties we might have had eight counsel in court, all arguing about a proposition which is self-evident to anybody with any secure grasp of the fundamentals.[35]The lessons to be learnt in relation to the operation of the appellate process seem to me to be evident. Where the application for permission is lodged as an urgent application, and where the application seeks an expedited hearing, it is self evident that the court's opportunity for judicial case management is reduced. The applications for permission has to be put before a single Lord Justice more or less on the date of receipt and the single Lord Justice has to make a determination on paper almost at once. There is not the usual opportunity to give directions to ensure that there is not an unnecessary duplication of bundles. There is not the usual opportunity to place limits upon the parties to be represented before the court by counsel at the hearing. Thus there is a particular responsibility on the professions to work together collaboratively and imaginatively to avoid wasting public money, wasting costs that are going to fall either on rate payers or on the Legal Services Commission, and wasting the resources of this court in the reading of unnecessary material or in considering separately a number of applications which could all perfectly well have been considered by a single Lord Justice on a single occasion, alternatively, by agreement between the parties, reduced to a single application.[36]I do not think that I have seen a case in which there has been such obvious misplaced effort as this, but at least it provides an opportunity for lessons to be learned. No doubt the court itself will be astute in the future to see that controls are imposed at an earlier stage. But returning to the appeal itself, in my judgment it should be allowed and the order below should be set aside.[37]THE PRESIDENT: I agree wholeheartedly with the judgment of Thorpe LJ. My heart sank when I saw the dimensions of this appeal. As Thorpe LJ has said there are lessons to be learnt from it for the future, and although it may be in effect repetitive I feel that I ought to endorse my Lord's judgment by making two separate points myself.[38]The first point is this. In a case where an order is made especially in interlocutory proceedings with which other parties disagree and an appeal is contemplated, it is most important that the parties dissatisfied with the order get together and discuss the management of the appeal. It is unhelpful to the Court of Appeal and unnecessarily extravagant of scarce public funds to have two separate proposed appellants.[39]In the present case the applications for permission came before two separate Lords Justices at different times, who both had to read the papers - an unnecessary waste of appellate judicial time. At the appeal there are six counsel, including two leading counsel. The case of the guardian as appellant is supported in court by the local authority and one of the three father who is the other proposed appellant. Two other fathers supported the guardian by letter and wisely did not attend, thus saving money.[40]Not only do we have too many legal representatives in court, we have, as my Lord has pointed out, two separate applicant bundles and three or four sets of authorities. It is very important to have a single core appeal bundle and an agreed bundle of authorities. I know very well that this case was put into our list as urgent, but the decision and order of the trial judge were nearly five weeks ago and there was ample time to get a singe core bundle and ample time to have a single bundle of authorities. A considerable amount of money could have been saved by the lawyers getting together and managing the progress of this appeal and this application for leave.[41]The second point I want to make is in relation to the assistance that the court is entitled to receive from legal advisers. The principles to be applied and the relevant authorities should be provided with an obvious preference for those decided by the House of Lords and the Court of Appeal. If an unusual argument (as this was) is to be mounted sufficient research must be done to ascertain the state of the law and the procedure to be applied to the issue. There is nowadays no difficulty in obtaining cases and what the relevant procedure and rules are, from the textbooks (and there are several) and from the internet. I would not like to think that the current law is any more difficult to ascertain in South Wales than in any other part of England and Wales.[42]An ill-researched and demonstrably inaccurate skeleton argument was provided to the judge. The contents were misleading, and the judge had to deal with it. He rightly rejected the argument that he had no power to make the order. But I have no doubt that it contributed to the error into which the judge fell in deciding whether he should make an order for disclosure.[43]Today, leading counsel, with the candour that I would of course expect from him with his great experience of family cases, has entirely accepted that the skeleton argument below gave an inaccurate picture of the position on disclosure of documents in children cases. He has helpfully set out the signposts for such procedure in the rules which I recognise is not entirely easy to follow. But he willingly accepts the principles to be derived from them in an application for disclosure.[44]The judge below was entitled to and did not receive the same help from counsel. That is regrettable. The case therefore got off the right track. I hope that it is now back on track. I hope that it can be heard next Monday. But do not let anybody be under any misunderstanding, a great deal of time and money have been wasted, and at the very core of the waste of time and money is the adverse effect on children; and we know that Parliament itself have said in section 1(2) of the Children Act that delay is detrimental to the welfare of children.[45]I also would allow the appeal. I would direct that all the relevant documents be disclosed to all the lawyers, the guardian ad litem, the named social worker and the experts, immediately; but I would suggest that there should be a stay on disclosure of disputed documents until the first day of the hearing to enable counsel for the mother to seek a direction from the trial judge that some or all of these disputed document should be withheld from the lay parties.[46]The order is as follows: permission to appeal to the applicant, who is also the third respondent, is granted; the appeal of the guardian ad litem and the father are both allowed; we direct immediate disclosure of all documents in dispute to the lawyers, the named social worker, the guardian and the experts; there is a brief stay of disclosing the disputed documents until the first day of the trial (18 November) to enable counsel for the mother to seek a direction from the trial judge that some or all of these disputed documents should be withheld from the lay parties. (Appeals allowed; detailed assessment of costs of all parties except the local authority).

Cited in 5 later judgments