London Borough of Brent v N & Ors [2005] EWHC 1676 (Fam)

This judgment is being handed down in private on 27 July 2005. It consists of 10 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No FD05P00631

[2005] EWHC 1676 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 27 July 2005

Before

THE HON MR JUSTICE SUMNER

Between

London Borough of BRENTApplicant

Miss Judith Charlton for Applicants

Mr Stephen Cragg (instructed by Powell Spencer Solicitors) for First Respondents

Mr Robert Ward, Solicitor for Second Respondent

Hearing Hearing dates: 20 May and 16 June 2005

Judgment

The Hon. Mr Justice Sumner :

Introduction

[1]There is before me an application of 6 April 2005 by a London Borough in respect of a 2 year old girl, P. In October 2003 the Local Authority obtained an interim care order in respect of P because her mother’s chaotic lifestyle threatened her welfare. They placed her with foster parents, Mr and Mrs N, shortly afterwards. P has not seen her mother since January 2004.

[2]The Local Authority propose that P should live with her father, S. It is intended that this will take place about now. S lives with his partner T and her young daughter.

[3]During the course of assessment of Mr and Mrs N as long-term foster parents, it became known to the Local Authority that Mr N is HIV positive. Mr N objects to that information being passed on to S and his partner T.

[4]The Local Authority, unsure of their obligations in such a situation, issued the present application seeking permission from the court to disclose Mr N’s medical status to S and his partner T. I heard argument on 20 May and 16 June 2005.

The issue

[5]The issue before me is whether a Local Authority is under a duty to parents and to a child to disclose that a foster carer with whom the child lives is HIV positive. If so the question is whether that duty is outweighed by a foster parent’s right to confidentiality about their medical condition.

The hearings

[6]On 20 May I heard argument from Mr Cragg on behalf of Mr N, from Miss Charlton on behalf of the Local Authority, and from Mr Ward on behalf of the Guardian. At that stage the medical information was sparse. It consisted of a paragraph in an affidavit filed by a social worker, Miss K of 6th April 2005:

“The Local Authority learned of this condition at the beginning of 2005. Various efforts have been taken to assess the risk to P. The Local Authority has received medical advice that there is a low risk of the virus being transmitted, of the order of 0.3%.”

[7]During the hearing I indicated that I was not happy to resolve the question on that limited basis. Miss Charlton readily agreed that a medical report would be helpful. The hearing was adjourned to 16 June for that to be obtained.

S’s solicitor

[8]The nature of the application before me on 20 May meant that S and his solicitors had not been informed of the Local Authority’s application. By coincidence his solicitor, Mr M, was appearing before me in another matter listed on 20 May. I alerted the parties and Mr M to the fact that a matter involving his client was being heard before me. No notice had been given to him.

[9]I invited him in to court. I explained only that there was an application involving the Local Authority and the foster parents of P but not the nature of it. I said that until I had given my judgment I considered that he should not inform his client that there had been the hearing. I indicated that I might well give a direction to that effect should he feel, as I expected, under an obligation otherwise to inform his client.

[10]I gave him a short time to consider the matter. Mr M then informed me that he would require a direction if he was not to inform the father. Accordingly I made such a direction pending my judgment. 20 June 2005

[11]At the adjourned hearing there was before me a clear and most helpful medical report from Dr Amanda Williams. She is a consultant paediatrician at Northwick Park Hospital with a sub-specialisation in paediatric infectious diseases and immunology. I shall return to that report.

[12]In essence Dr Williams concluded that the prospect of any transmission of the disease from Mr N to P was negligible. In the light of that report the Local Authority, whilst not seeking to withdrawn their application, did not wish to address further argument to me. They did however ask me to give a judgment. I reluctantly agreed to do so.

[13]My reluctance was because I had not heard full argument from all the parties in relation to a matter of some significance. Before setting out those concerns it is helpful to consider Dr Williams’ report in further detail.

The medical evidence

[14]The concise nature of Dr Williams’ report makes quotations from it more helpful than a summary. “A. i. The risk of transmission from a person infected with HIV is dependant on contact with body fluids containing the HIV virus. Any exposure to the virus depends on the amount of virus within the fluid and the mode of contact. ii. Not all body fluids from persons with HIV infection are equally infectious. Blood, semen or vaginal secretions, and human milk from a person with HIV are considered infectious. However saliva, urine, faeces (including diarrhoea), tears, sweat, nasal secretions, sputum and vomitus are non-infectious unless blood stained. iii. The risk of transmission from exposure to HIV infected blood is dependant on the contact with the blood. For example a needlestick injury from someone known to have HIV, where infected blood is injected into a healthcare worker, carries a risk of infection of 0.3%. However blood from a person with HIV in contact with intact skin carries no risk as HIV cannot penetrate intact skin. iv. The risk of transmission from contact with blood, will also vary with the amount of virus in the blood (viral load). If the viral load is low or undetectable (as is achieved on effective antiretroviral drug treatment) then the risk of transmission will be reduced. v. If the child had an open bleeding wound and the foster carer had an open bleeding wound and there was significant mixing of blood this would be a risk. The risk would be likely to be less than that from a needlestick injury, i.e. less than 0.3% ….. vii. A bite from a person with HIV which does not break the skin carries no risk. A bite that breaks the skin would extremely rarely result in HIV infection as HIV virus is not contained within saliva and there would have to be contact with blood also……….. B. i. In my opinion, if the exposure is normal non-sexual household contact, the risk of HIV transmission is negligible. ii. There have not been any cases of HIV transmission documented in studies of non-sexual household exposure where one or more members of the family have HIV infection. In schools bites and cuts have not resulted in transmission. iii. The risk of HIV transmission within households is quoted by the Children’s HIV Association as 0 – 0.2 infections per 100 patient years………. F. i. There is no need for any special steps to be taken to reduce transmission. The care the child needs is the care required by any child of that age. As stated previously normal non-sexual household contact has a negligible risk of transmission of HIV. G. i. I do not have access to any information that states there has been any high risk contact between P and her foster carer. If there has been normal household contact it is not necessary for P to be tested for HIV. ii. If there are concerns that there has been any high risk contact, then in my opinion, a decision to test P should be based on a thorough medical assessment of the child by a doctor specialising in paediatric HIV. H. i. Testing would involve taking approximately 5ml (a teaspoon) of blood, which would be sent for HIV antibody test. P could have an anaesthetic cream applied prior to the test….. I. vi. HIV is not a notifiable disease and the risk of transmission in normal social contact is negligible. Nationwide there is not routine screening of foster carers or children in foster care. vii. The confidentiality of the foster carer will be breached. This is likely to have a detrimental effect of the life of the foster carer and his family, as persons with HIV often suffer from discrimination and social isolation. I would not recommend that this confidentiality is breached if the child has only been exposed to normal non-sexual household contact.”

Analysis

[15]It is not surprising that in the light of those conclusions the Local Authority did not press their application. In this they have the support of the Guardian. However that leaves a number of other considerations.

[16]It is not in dispute that to disclose a persons medical condition to a third party without their consent is a breach of

Article 8 of the European Convention on Human Rights

enacted into British law under the Human Rights Act 1998. That Article states – “Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[17]It has been held for instance that disclosure of a persons convictions as a paedophile is a breach of Article 8. This is because of the potentially serious affect on the ability of a convicted person to live a normal life, a risk of violence and that disclosure might drive them underground. However it may be justified in some circumstances (see R (Ellis) v Chief Constable of Essex Police

(2003) 2 FLR 566

[18]Lord Woolf MR said at p. 428a – “….. it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public is a highly sensitive one. Disclosure should only be made where there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances.”

[19]That dicta is in accord with the decision of EctHR in Smith and Grady v UK

(2000) 29 EHRR 493

. There it was held that where the relevant restrictions concern “a most intimate part of an individual’s private life”, there must exist “particularly serious reasons” before such interferences can satisfy the requirements of

Article 8 of the ECHR

[20]Tugendhat J in W v Westminster City Council

(2005) EWHC 102

QB cited with approval a passage from a pamphlet “Working Together to Safeguard Children” published in 1999 by the Department of Health, The Home Office, and the Department for Education and Employment where it said – “7.36 Disclosure of information without consent might give rise to an issue under Article 8. Disclosure of information to safeguard children will usually be for the protection of health or morals, for the protection of the rights and freedoms of others and for the prevention of disorder or crime. Disclosure should be appropriate for the purpose and only to the extent necessary to achieve that purpose.”

[21]In that case the Local Authority had disclosed information that the claimant was grooming a child for prostitution. Tugendhat J held that its disclosure was in breach of Article 8. He said of the information - “This was highly sensitive and potentially very damaging information. There was no need, whether pressing or at all, to make the disclosure then and there in the way that it was made.”

[22]To be balanced against the right not to disclose confidential medical information are a number of considerations. Firstly there is the importance of disclosure of relevant information to all parties in litigation. This is emphasised by the decision of the Court of Appeal in Re: M (Disclosure)

1998 2 FLR 1028

. In that case the Court of Appeal reviewed the circumstances in which information should be withheld from one party in Children Act cases.

[23]In the course of his judgment Thorpe LJ noted that Lord Mustill in his speech in Re: D (Minors) (Adoption Reports: Confidentiality)

(1996) AC 593

had quoted with approval a passage in the judgment of Glidewell LJ in Re: B (A Minor) (Disclosure of Evidence)

(1993) Fam 142

where he had said – “That power is, however, only to be exercised in most exceptional circumstances, in accordance with the principles laid down in Official Solicitor v Kay …….. Before ordering that any such evidence be not disclosed to another party, the court will have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it.”

[24]Lord Mustill went on to set out 5 principles. “(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party ….. (2) ……the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child. (3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur. (4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case. (5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

[25]There are differences here. Disclosure of this information to the father and his partner will not affect the question of placing P with them. There is no ongoing litigation to which it is relevant. It is not information which will be taken into account by a court.

[26]However there are further considerations. For instance it could be said that it is the right of a parent to know about any health risk to which their child might be exposed whether negligible or not in order to inform themselves of potential harm. Without that they cannot take such advice and seek such tests as they may consider appropriate.

[27]It is this aspect of the case on which I have not been addressed at any length. The parents have not been before the court. There has been minimal argument on behalf of the Guardian. I accept that there have to be particularly serious reasons to disclose Mr N’s HIV positive status to the father and his partner. It is not easy to see that those could arise where the risks of infection are negligible.

[28]But I bear in mind that the placing of P with Mr & Mrs N was not voluntary. The interim care order gave the Local Authority shared parental authority with the mother, the father having not acquired parental authority. However I do not regard the position of the parents as dependant on whether they have parental authority.

Conclusions

[29]There is I consider in general an obligation on a Local Authority to share relevant information relating to a child in their care with its parents. Relevant information would include the state of the child’s health. A child’s health covers exposure to infectious diseases where the risk is not negligible and the consequence of infection serious.

[30]This might well arise where a Local Authority is advised on a sound medical basis that an invasive test should be carried out. In ordinary circumstances a Local Authority might be expected to share that information with parents.

[31]Here there is no question but that an HIV infection is serious. But there is before me sound medical evidence that the risk of infection is negligible. There is an objection to disclosure by the person who might cause the infection. It is not information which a court will take into consideration in favour of or against any party whether now or in the future.

[32]In those circumstances I hold that no duty to inform the parents arises even though it is accepted that the Local Authority is a public authority within Article 8. The reasons are – i) Disclosure impinges Mr N’s right to respect for his private life. ii) It would be in breach of the duty owed to Mr N to disclose confidential details relating to his health. iii) There is no need for such disclosure. The rights of the mother and father to know of any risk to which their child might be exposed whilst in care does not arise where the risk is negligible, and the disclosure is opposed. Serious reasons are required and they have not been established. iv) Where the risk is not negligible the duty to disclose may overcome Mr N’s rights and the duty owed to him. Each case will be dependent on its own facts.

[33]I should make it clear that I am only deciding this case on the facts before me. I do so on limited argument.

[34]Finally I note in passing the case of X v Y (1988) 2 AER 648. That case related to doctors who were HIV positive. The question was whether their right to confidentiality outweighed the public interest in permitting the press to publish the doctors’ names. Rose J as he then was held that it did.

[35]There was medical evidence accepted by the court. It included the view that it was difficult to believe that an infected GP, even theoretically presented a risk.

[36]In the light of my conclusion I shall direct that the restriction I placed on S’s solicitor Mr M shall continue including the giving of this judgment. I shall give Mr M liberty to apply and ask the Local Authority to inform him of this and to draw the draft order this week resulting from this judgment.