C (A Child) [2008] EWCA Civ 1033

Case No B4/2008/1844

[2008] EWCA Civ 1033

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT, FAMILY DIVISION YORK DISTRICT REGISTRY

(HER HONOUR JUDGE FINNERTY)

(LOWER COURT No: YO08P00457)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 2 nd September 2008

Before

LORD JUSTICE WILSON

Between

Applicant FatherApplicant

Respondent MotherRespondent

IN THE MATTER OF C (A Child)

(DAR Transcript of

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The Applicant Father attended in person, assisted by a McKenzie Friend.

The Respondent Mother did not attend and was not represented.

Judgment

[1]The hearing of this application by a father for permission to appeal was listed to be heard in this court at 2.15pm. The father was not in attendance at 2.15pm. I resolved to wait for one quarter of an hour. He was not in attendance by 2.30pm. I then embarked upon a judgment of the application. The terms of it are no longer relevant. I should say, however, that, having read the papers filed for my use in respect of the application over about three hours, and having paid particular attention to the father’s grounds for appeal and his quite lengthy skeleton argument, I had formed the view that the application should be refused. Before I embarked upon my judgment, I had wrestled with whether I should adjourn the application or give judgment there and then I resolved upon the latter course and decided that my judgment should explain that I was refusing the application and my reasons for doing so.

[2]About 10 minutes after I had embarked on judgment and prior to my conclusion of it, the father and his McKenzie friend, Mr Wiser, arrived in court. The father explained that he had understood that I would be hearing the matter in another court and that he and Mr Wiser had been waiting patiently outside that court. I explained to the father that I had embarked upon judgment and, indeed, that its conclusion was to be adverse to his application. I stated, however, that I was prepared to put that incomplete judgment to one side and to listen to the father’s oral argument if he wished me to do so; and he said that he did wish me to do so. I explained to him that although, having read the papers, I had been of the view that the application should be refused, I was sufficiently professional in my approach to the hearing of cases to be able to listen to what he proposed to say on the basis that, were he to convince me of the merits of his application, I would change my mind and grant him the permission that he sought.

[3]Thus on that basis the father has addressed me for about half an hour. He addressed me with civility and clarity. I am in no doubt that the subject of the application is very near to his heart and that he is heartbroken at the present situation in relation to his son, which I am about to describe. Nevertheless, after hearing his argument, and, as it has eventuated, after having about 15 minutes in my room to reflect on the situation, I have not changed my mind and I will refuse this application. I do so for the following reasons and in the following circumstances.

[4]The application is for permission to appeal against an order by Her Honour Judge Finnerty sitting as a judge at the High Court, Family Division, York District Registry, on 18 July 2008. Before the judge was an application by the father for leave to disclose to specified medical professionals certain documents filed in the long-running proceedings relating to his son, R, who was born on 3 September 1990 and so tomorrow will attain the age of 18. Most unfortunately R suffers from Asperger’s Syndrome and he has also recently been diagnosed as suffering from Obsessive Compulsive Disorder. It appears that he is presently an in-patient, at any rate during the week, at an adolescent mental health unit called Lime Trees in York. This afternoon the father has expressed doubt as to the length of time for which, once he has become an adult, R will be able to remain at that unit.

[5]The judge granted part of the father’s application. She directed that the transcripts of four judgments given in the proceedings, namely judgments of circuit judges other than herself dated 2 November 2004, 23 August 2005 and 7 March 2006, and judgments given in this court on 16 February 2005 on one of the father’s appeals, should be permitted to be disclosed by the father to Dr Evans, who is a consultant psychiatrist in charge of R’s treatment at Lime Trees, and to Dr Ashley, his general practioner, on the basis that they should be at liberty in the exercise of their professional judgment to disclose any part of them to R, as part of, or to assist in, his treatment and indeed to any other professional responsible for his mental wellbeing. The judge however declined to authorise the father to disclose to them a witness statement which he had signed on 16 July 2008, to which he had exhibited both an earlier witness statement signed by him on 14 January 2006 and a print-out from a website of an organisation called Separated Families. In that the latter document is in the public domain, the father does not need permission in order to send it to the professionals. His argument, however, in particular related to the two witness statements, in which he set out at length his perception of the problems which have arisen since May 2004 as regards his relationship with R. The sad fact is that he has not seen R face-to-face since that month; and it is quite clear that since then R has wished to have nothing to do with the father and to have no contact with him of any sort. There have been frequent proceedings in the county court between the parents, at one stage including the representation of R by the National Youth Advocacy Service; and a few of the orders made have been the subject of attempted appeals by the father to this court. The father squarely blames the mother for bringing to the issue of his relationship with R her own feelings of antipathy towards himself and for not taking the steps which a good mother should take in order to ensure the continuation of a relationship between a loving father, as this father certainly is, and his son.

[6]Speaking for myself, I see no problem in the fact that R becomes 18 tomorrow and thus that, were permission granted, the substantive appeal would be heard after he had become an adult. It seems to me that it would remain open to this court to rule, even after R has become an adult, upon the order which should have been made in relation to him while he was a minor. In my view the problem arises in relation to the merits of the proposed appeal.

[7]The judge refused to authorise disclosure of the father’s recent witness statement, presumably including the earlier witness statement exhibited to it, in the following terms:

“It sets out [the father]’s perception of events that have occurred. His perception is not agreed by [the mother]. There has been no judicial determination of the issues between the parents identified within that statement, particularly in respect of alleged events which have occurred since the last judgment from the court and, accordingly, this statement could not be regarded by any professional as an agreed document, or a document which has been found as fact by any court and, accordingly, in my judgment, it would not be appropriate for this statement to be disclosed to any of the professionals.”

[8]How then could the father persuade this court not just that it should take a different view about the controversial disclosure from that taken by the judge but that her view fell outside the band of reasonable views such as to invalidate the exercise of her discretion? The father’s argument, set out in his written skeleton and well presented orally this afternoon, is essentially that, with respect to the judge, she had no expertise in assessing whether his statements, if disclosed to R, might assist his treatment and that the judge should have left it to the discretion of the experts to decide whether to show them or any part of them to R. The father has also stressed this afternoon that, irrespective of any decision on their part to show the statements or any part thereof to R, the treating professionals might be assisted by reading his statements and understanding at any rate his perspective upon the tragic developments. These arguments would, of course, lead to a general disclosure to clinicians of in effect all significant documents filed in proceedings under the Children Act 1989. Such, however, is not the practice of the family courts and would in my view be an abdication of their duty in every case actively and carefully to consider whether there are grounds for lifting the confidentiality which surrounds documents filed in such proceedings. The father’s two witness statements are partial documents: they present his side of the story and they contain substantial criticisms of the mother. The earlier statement, dated 14 January 2006, was before the circuit judge when he gave his judgment dated 7 March 2006 and, to the extent that the judge regarded the allegations in the father’s statement as relevant and valid, he no doubt incorporated them into his judgment, which the father already has permission to disclose. The more recent statement, in places hotly disputed by the mother, has, as the judge pointed out, not been the subject of judicial determination in that the father, who was represented at the hearing on 18 July 2008, wisely withdrew his application for an order for any form of contact with R. In my view any authorisation of the court to disclose the father’s statement might be misunderstood by professionals to represent an endorsement of the allegations therein made by the father in circumstances in which the court has not endorsed them nor indeed been called upon actively to appraise them. In my view it was incumbent upon the judge to form a preliminary view as to whether the father’s statements might usefully be deployed by those treating R; and, in circumstances in which it is clearly established that R has an extremely close relationship with the mother and, currently, an antipathy towards the father and in particular towards his perceived attacks upon the mother (although the father would not accept that such is an apt characterisation of his struggle to maintain a relationship with his son), it is in my view almost impossible to consider that disclosure of the witness statement or part of it to R would have any effect other than to reinforce his antagonism towards the father and further to inflame his anger towards him.

[9]Had I been in the judge’s shoes, I would have reached the conclusion which she reached. As I have indicated, however, the father would need to go further than that and to persuade this court that the judge’s disposal was outside the realms of reason. It would be impossible for him to do so and I refuse permission for this appeal to proceed.

[10]I add a postscript. In the course of his argument the father has, in respectful terms, wondered aloud whether he needed to obtain the permission of the judge to send his witness statements to the treating clinicians; and apparently that doubt on his part was to some extent articulated before the judge, even though it found no reflection in her judgment. His doubt, he explains, stems from the provisions in rule 10.20A of the Family Proceedings Rules 1991. By paragraph (1) of the rule it is made clear that the rule applies to proceedings held in private which are brought under the Children Act 1989. Paragraph (2) provides that information relating to the proceedings (whether or not contained in a document filed with the court) may be communicated not only where the court gives permission but, subject to any direction of the court, in accordance with paragraph (3) of the rule. Paragraph (3) provides that a person specified in the first column of the table which follows it may communicate to a person listed in the second column of it such information as is specified in the third column of it for the purpose specified in the fourth column of it. Then, arriving at the heart of the matter, the father draws my attention to the fact that, pursuant to that table, a party to the proceedings may communicate to a health care professional or a person or body providing counselling services for a child any information relating to the proceedings (whether or not contained in a document filed with the court) in order “to enable the…child…to obtain health care or counselling”.

[11]I have to say that the father’s reference to that rule gave me pause for thought. Did he, in the light of that rule, need the judge’s permission to send documents such as these witness statements to those who are attempting to treat R? My conclusion is: first, that the table does not entitle this father to send these documents to the specified clinicians; and second, that the table, and thus the generalised permission contained in it, is in any event subject to any contrary direction of the court pursuant to paragraph (2)(b) of the rule and that, in effect, Judge Finnerty has given a contrary direction.

[12]The basis of my first conclusion is that the proposed disclosure would not be to enable the child “to obtain” health care or counselling. I believe that the purpose of this rule, which the father has very properly drawn to my attention, stems from the not unusual situation in children cases where a professional (like a child psychiatrist) not treating the child is asked for the purposes of the proceedings to make an assessment of him. Not infrequently such a forensic psychiatrist advises that a child should obtain psychiatric or other treatment which he is not currently obtaining. I believe that the purpose of the rule is to entitle a party to send that sort of report to the appropriate local resource in order “to obtain” treatment for that chid. I do not consider that the proposed disclosure of the witness statements to those currently treating R falls into the category permitted by the table. But, as I have said, my second conclusion is that in any event the judge has, by rejecting the appropriateness of this disclosure, in effect made a direction that it should not take place even if it were otherwise to have been permissible under rule 10.20A. 13. Permission to father to disclose a transcript of today’s judgment to Dr Evans and Dr Ashley.