N (A Child), Re [2009] EWHC 1663 (Fam)

[2009] EWHC 1663 (Fam)Case No FD03P02333
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 July 2009
Before
MR JUSTICE MUNBY
Between
AApplicant(1) GRespondents(2) N (by his guardian, CP)Respondent
In the Matter of N (A Child)
Dr Michael Pelling for Applicant (father) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)Mr David Holden for First Respondent (mother) (pursuant to leave of the court granted under section 27(2) of the Courts and Legal Services Act 1990)Ms Shelagh Farror (instructed by Goodman Ray) for Second Respondent (child)No hearing : matter decided on written submissions in accordance with order dated 6 May 2009(Submissions filed between 19 May 2009 and 5 June 2009)
Judgment
[1]This is an application in respect of the proposed disclosure to the General Medical Council (GMC) of an expert report produced in the course of and for the purposes of proceedings in relation to a child.[2]It is, so far as I am aware, the first time a court has had to consider rule 11.4(1)(c) in the newly inserted Part XI of the Family Proceedings Rules 1991, SI 1991/1247. And it vividly illustrates just how profound are some of the changes brought about by Part XI.

The background

[3]These are private law proceedings relating to N, who was born on 22 March 2001. His parents never married and separated in August or September 2002, but the father, A, has parental responsibility pursuant to a parental responsibility agreement dated 25 November 2002.[4]The proceedings began on 17 October 2003, when N was only 2½ years old, and have continued ever since with unabated vigour. The President of the Family Division recently described the attitude of the parents until July 2008 as “acrimonious, confrontational and emotionally fraught in relation to N’s residence and parental contact”: see A v G [2009] EWHC 736 (Fam) at para [1]. I see no reason to differ from that assessment, which accords entirely with my own impressions of this unhappy litigation.[5]On 17 November 2003 the father issued an application for residence and interim contact. After a long and tangled procedural history which there is no need for me to record here (it is recorded in other judgments), the proceedings eventually came on for a final hearing before me on 21 July 2008. After many days of strenuous discussion between the parties, a consent order which I approved was made on 29 July 2008.[6]Amongst the voluminous materials put before me were reports on the mother and the father, each dated 4 April 2008, by Dr CM, a consultant psychiatrist. The father had produced a 17 page statement dated 12 April 2008 criticising Dr CM’s reports as “seriously flawed”. He had also prepared – seemingly with professional medical assistance – a 94 page “Critique” of Dr CM’s psychiatric assessment of the mother which questioned the “professionalism” of Dr CM’s work.[7]In his statement of 12 April 2008 the father summarised his complaints against Dr CM under three headings. He asserts that:(1) Dr CM had insufficient information on the mother to ascertain if she was suffering from a mental illness / personality disorder – Dr CM, he said, had “tolerated her refusing to answer questions”;(2) Dr CM was biased towards the mother; and(3) Dr CM had disregarded concrete evidence, thus giving a misleading view of the mother – Dr CM, he said, had ignored evidence that had been made available to him (four alleged examples were given). Amongst his more specific complaints was that in interviewing the mother Dr CM “did not bother to apply” what the father asserts is a “well-known Diagnostic Interview for Borderlines.”

The application

[8]As had been foreshadowed during the hearing in July 2008, on 2 October 2008 the father sent the court a request for leave to disclose certain documents to the appropriate professional body for the purpose of making a complaint about Dr CM.[9]I have already set out the basis of the father’s criticisms of Dr CM’s reports. In his request dated 2 October 2008 he summarised the grounds of his application for leave to disclose what he said are the relevant documents to Dr CM’s professional body as follows: i) In the first place, he said, a prima facie case had already been made out, in his statement of 12 April 2008 and in the detailed ‘critique’, that there are serious grounds for complaint to Dr CM’s professional body. Part of the meaning of “professional”, he said, is that members of the profession are subject to regulation in their conduct and competence – which would have little value if members of the public could not make complaints to the relevant regulatory body. It is, he asserted, plainly in the public interest that complaints should be possible and be duly processed, so the court should therefore normally facilitate the complaints process; the burden, he suggested, is upon the court or the other parties to say why any necessary leave to disclose should not be granted. ii) Secondly, he said, he wished to complain about Dr CM’s competence in relation to both the report on himself and the report on the mother. In relation to himself he has of course, as he pointed out, a personal interest. In relation to the mother, and also himself, he has an interest as a party in competent expert evidence being provided to the court, for such evidence affects or potentially affects the outcome of the case, and hence the interests of the child and of himself qua father. Putting the matter at its highest, he believed that if Dr CM had carried out his remit in relation to the mother competently and professionally then he should have found that she had Borderline Personality Disorder, which would have considerably strengthened his case for sole residence of N, a case which, he said, he might not otherwise have abandoned. iii) Furthermore, he said, he has a lesser interest in the report on the mother being prepared properly, because he consented to pay ⅓ of the fees for it. There is, as he pointed out, an implied term in the contract that the work will be done in a proper professional manner and he objected to paying Dr CM’s fees until such time as there had been a ruling on the complaint he wished to make (and the same applies of course, as he said, to the report on himself).[10]I have and express no views of any kind as to the merits or demerits of the father’s complaints, as to whether or not there is any substance in the father’s complaints, about Dr CM. Because the matter was eventually compromised, Dr CM never gave evidence before me and was, therefore, never cross-examined. For all I know there may be substance in the father’s complaints; for all I know they may be utterly groundless.[11]I need not list the voluminous documents that the father says should be disclosed to the GMC. In essence he says that, in order to give informed consideration to and make an informed adjudication upon his intended complaint about Dr CM’s methodology, the GMC will need to see the reports themselves, together with Dr CM’s letter of instruction and the material Dr CM was provided with pursuant to the court’s order, and any supplementary material he was also provided with. The GMC should also, the father says, have his statement of 12 April 2008, one of the (lengthy) exhibits to a statement he had made on 7 July 2008, and his detailed ‘critique’ of Dr CM’s methodology, as these documents set out why he considers the methodology to have been seriously flawed and Dr CM’s work, as he puts it, unprofessional and incompetent.[12]When this issue was first ventilated by the father, disclosure of documents generated in the course of children proceedings was regulated by section 12 of the Administration of Justice Act 1960 and rule 10.20A of the Family Proceedings Rules 1991. So it was in that context that the father sought leave to disclose the documents to the GMC.[13]In accordance with directions I had given on 20 January 2009 and on 21 April 2009, the hearing of the father’s application came on for hearing before me (together with numerous other applications which will be the subject of a separate judgment) on 5 May 2009.[14]In his position statement dated 24 April 2009 the father helpfully drew attention to the fact that, with effect from 27 April 2009, the new Part XI of the Family Proceedings Rules 1991 would be in force, replacing rule 10.20A. He pointed out that it appeared from rule 11.4(1)(c) that the leave of the court would no longer be required to disclose documents for complaint purposes. However, he made clear that he was leaving his application on the record “as this has been a contentious matter, and some parties may wish the court to restrict disclosure.”[15]Since it seemed to me that rule 11.4(1)(c) might potentially raise issues of significant impact in a wide variety of cases, and since the parties had understandably had little opportunity to consider its meaning and effect (for the new rule was not made public until 6 April 2009), I decided that I could not properly deal with the issue during the hearing on 5 May 2009.[16]Accordingly, and with the agreement of all parties, I made an order on 6 May 2009 adjourning the father’s application for disclosure on the basis that the parties would file written submissions sequentially (the guardian by 20 May 2009, the mother by 27 May 2009 and the father within seven days thereafter) and, the parties having consented to my proceeding in this way, that I would decide the issue on the basis of the written submissions of the parties and without the necessity of an oral hearing. Helpfully and appropriately the father undertook pending judgment on the issue of disclosure and until further order of the court not to disclose or cause to be disclosed, by any other person, to the GMC any of the court documents or material which are the subject of his application.[17]In accordance with the directions I had given, Ms Farror’s submissions on behalf of the guardian were filed on 19 May 2009, the mother’s submissions on 26 May 2009 and Dr Pelling’s submissions on behalf of the father on 5 June 2009.[18]I now hand down judgment.

The parties’ positions in outline

[19]The father’s position, as we have seen, is that he should be able to disclose to the GMC both of Dr CM’s reports, together with the other documentation which, he says, the GMC will need to see to be able to make sense of his complaint.[20]The mother and the guardian accept that the father should be able to disclose the report on himself. In all other respects, however, they join in asserting that there should be no further disclosure.

The legal framework

[21]Had this application come before the court (say) five years ago, there would have been no difficulty in identifying the approach to be adopted in determining how it should be decided. The effect of section 12(1)(a) of the Administration of Justice Act 1960 and rule 4.23 of the Family Proceedings Rules 1991 would have been to prohibit disclosure of any of the material absent an order of the court permitting disclosure: see Re B (A Child) (Disclosure) [2004] EWHC 411, [2004] 2 FLR 142. In deciding whether to permit disclosure the court would have applied the principles laid down in In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 at page 85 (sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725 at page 733), as elaborated in the context of complaints to the GMC in Re A (Disclosure of Medical Records to the GMC) [1998] 2 FLR 641 and A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (appeal dismissed, A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045).[22]The judgment in Re B (A Child) (Disclosure) [2004] EWHC 411, [2004] 2 FLR 142, highlighted some of the implications of section 12 of the 1960 Act which had not previously been appreciated in certain quarters. This led to speedy legislative action. In the first place, section 12(4) of the 1960 Act was amended by the Children Act 2004 so as to insert the words which I have italicised below. It now reads:
“Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”
In short, section 12 can now be disapplied by rules of court.[23]Secondly, the Family Proceedings Rules 1991 were amended by the revocation of rule 4.23 and the insertion, with effect from 31 October 2005, of a new rule 10.20A.[24]I need not go through rule 10.20A in detail, not least because it has itself now been revoked. It suffices to refer to rule 10.20A(2), which provided, so far as material, that: “For the purposes of the law relating to contempt of court, information relating to the proceedings (whether or not contained in a document filed with the court) may be communicated –(a) where the court gives permission;(b) subject to any direction of the court, in accordance with paragraphs (3) or (4) of this rule”.[25]Rule 10.20A(3) provided that:
“A person specified in the first column of the following table may communicate to a person listed in the second column such information as is specified in the third column for the purpose or purposes specified in the fourth column.”
[26]Rule 10.20A(4)(a) provided that: “A person in the second column of the table in paragraph (3) may only communicate information relating to the proceedings received from a person in the first column for the purpose or purposes … for which he received that information”.[27]I need not set out the whole table. Three entries are relevant for present purposes: Communicated by To Information Purpose A party, a legal representative or a professional legal adviser A person or body responsible for investigating or determining complaints in relation to legal representatives or professional legal advisers Any information relating to the proceedings For the purposes of making a complaint or the investigation or determination of a complaint in relation to a legal representative or a professional legal adviser A party An elected representative or peer The text or summary of the whole or part of a judgment given in the proceedings To enable the elected representative or peer to give advice, investigate any complaint or raise any question of policy or procedure A party The General Medical Council The text or summary of the whole or part of a judgment given in the proceedings For the purpose of making a complaint to the General Medical Council[28]Definitions, which there is no need for me to set out, were provided in rule 10.20A(5) for such phrases as “elected representative” and “legal representative”. The word “complaint”, however, was not defined.[29]Two things about this scheme may be noted. The first is that the only forms of “complaint” brought within the new arrangements were complaints about lawyers and doctors or complaints to an elected representative or peer. The second is that whereas in the case of lawyers any information relating to the proceedings could be disclosed without the need for prior judicial sanction in accordance with rule 10.20A(2)(a), in the case of complaints about doctors to the GMC or complaints to an elected representative or peer all that could be disclosed without prior judicial sanction was the judgment.[30]The scheme embodied in rule 10.20A did not survive for very long, for on 27 April 2009, the Family Proceedings (Amendment) (No 2) Rules 2009, SI 2009/857, came into force, implementing a dramatic and radical change in the law and giving effect to a new public policy: see Spencer v Spencer [2009] EWHC 1529 (Fam) at paragraphs [3], [47] and [49]. The Rules, in essence, did two things: First, they introduced into the Family Proceedings Rules 1991 a new rule 10.28 dealing with what was referred to as “Attendance at private hearings” – in other words, dealing with the question of access to family proceedings. Second, they revoked rule 10.20A and substituted for it a new Part XI in the Family Proceedings Rules dealing with “Communication of information: proceedings relating to children.” The Rules, I might observe, say nothing as to the reporting of proceedings.[31]I should add that there were no transitional provisions in the new Rules. Accordingly, in my judgment, Part XI applies, as does rule 10.28, to any proceedings, whether commenced before or after 27 April 2009: Spencer v Spencer [2009] EWHC 1529 (Fam) at paragraph [6].[32]The new Rules are supported by, and to an extent elucidated in, the President’s Practice Direction of 20 April 2009 “Attendance of Media Representatives at Hearings in Family Proceedings” and in a document issued two days later, on 22 April 2009, by the President entitled “President’s guidance in relation to applications consequent upon the attendance of the media in family proceedings.” However, as their titles would suggest, these two documents are concerned fundamentally only with the change in the rules relating to access. The Practice Direction is confined exclusively to that issue, so I say nothing more about it. And although the Guidance touches also on matters to do with both disclosure and reporting restrictions, it contains nothing which throws any light on anything I have here to consider. I can, therefore, confine my attention to the new Part XI.[33]I need not set out the whole of Part XI. It applies (see rule 11.1) to:
“family proceedings which – (a) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (b) are brought under the Act of 1989; or (c) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.”
[34]I start with the relevant provisions of rule 11.2:
“(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated – … (b) where the court gives permission; or (c) subject to any direction of the court, in accordance with rules 11.4 to 11.8. (2) Nothing in this Part permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.”
[35]Rule 11.4 provides so far as material as follows: “(1) A party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party – … (c) to make and pursue a complaint against a person or body concerned in the proceedings; or (d) to make and pursue a complaint regarding the law, policy or procedure relating to a category of proceedings to which this Part applies. … (3) When information relating to the proceedings is communicated to any person in accordance with paragraphs (1)(b),(c) or (d) of this rule –(a) the recipient may communicate that information to a further recipient, provided that— (i) the party who initially communicated the information consents to that further communication; and (ii) the further communication is made only for the purpose or purposes for which the party made the initial communication; and(b) the information may be successively communicated to and by further recipients on as many occasions as may be necessary to fulfil the purpose for which the information was initially communicated, provided that on each such occasion the conditions in sub-paragraph (a) are met.” (i) the party who initially communicated the information consents to that further communication; and (ii) the further communication is made only for the purpose or purposes for which the party made the initial communication; and[36]It may be noted that, again, there is no definition of the word “complaint”.[37]Three things about this new scheme, in contrast to the scheme previously embodied in the revoked rule 10.20A, may be noted. The first is that there is no limitation on the forms of “complaint” embraced within the new arrangements of the kind which were previously imposed by rule 10.20A(3). Rule 11.4(1) provides for the disclosure of the relevant information to “any person”. So the new scheme is no longer concerned only with complaints about lawyers and doctors or complaints to an elected representative or peer. The second is that there is likewise now no limitation on the information that may be disclosed in accordance with rule 11.4 without the need for prior judicial sanction in accordance with rule 11.2(1)(b). Rule 11.4(1) provides, without any expressed limitation, for the communication of “information relating to the proceedings” – in other words, the communication of any information relating to the proceedings. The third is the addition of the limitations and safeguards to be found in rules 11.2(2) and 11.4(3).[38]So the effect of rule 11.4 is to extend drastically both the circumstances in which disclosure can be made and the content of the disclosure that can be made, in each case without the need for prior judicial sanction in accordance with rule 11.2(1)(b), albeit subject to the limitations and safeguards in rules 11.2(2) and 11.4(3) and subject also to the power of the court to make a “direction” under rule 11.2(1)(c).[39]I should refer to one other part of the new scheme. The table which originally appeared as part of rule 10.20A(3) now appears, with many amendments, as part of rule 11.5. The new table retains the first of the three entries I referred to above – that relating to complaints about lawyers – though omitting the words “A party” in the first box. It omits the second entry – that relating to complaints to an elected representative or peer – and the third entry – that relating to the GMC – altogether. The reasons for these two modifications are apparent. In relation to any complaint about a lawyer or a doctor, or any complaint to an elected representative or peer, a party can now make disclosure in accordance with rule 11.4(1)(c), so there was no need for those parts of the previous table to be retained. On the other hand, a legal representative cannot, except when acting “on behalf of and upon the instructions of [a] party” avail himself of rule 11.4, so it was necessary to retain in the new table the ability of such a representative to make disclosure on his own account and without the instructions of his client.

The legal framework: analysis

[40]Before addressing the detail of the parties’ submissions it will be convenient first to analyse in rather greater detail both the ‘old’ law and the ‘new’ law as embodied in rule 11.4(1)(c).

The legal framework: analysis – the ‘old’ law

[41]There are three features of the ‘old’ law which need to be borne in mind in the context of a case such as this.[42]In the first place it is important to recognise that the law has long acknowledged the important public interest in family courts authorising the disclosure of otherwise private or confidential information and documents, for example to the police for the purpose of facilitating the proper administration of criminal justice: see In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 (sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725) and, most recently, the two related cases of Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, and Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944.[43]That public interest is not, of course, confined to disclosure to the police or for the purposes of criminal justice. The same public interest extends to disclosure of such materials to other public or regulatory agencies: see, for example, Northumberland County Council v Z, Y, X (by her children’s guardian) and the Government of the Republic of Kenya [2009] EWHC 498 (Fam), [2009] 2 FLR xxx.[44]In particular, and unsurprisingly, there is a strong public interest in the family courts making such disclosure to the GMC. As Cazalet J said in Re A (Disclosure of Medical Records to the GMC) [1998] 2 FLR 641 at page 644:
“If, as in the present case, the documents sought are only medical records, giving rise to possible professional misconduct, and the court is satisfied that these are or may be relevant to the GMC carrying out its statutory duties to protect the public against possible medical misconduct, it is hard to see what grounds, if any, the parents or other parties concerned may successfully raise against any such disclosure, provided the court properly addresses all questions of confidentiality, weighing in particular the interests of the particular child against other public interest considerations.”
[45]The same point was made by Thorpe LJ in A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045, at paras [18]-[20]:
“[18] … The strict confidentiality attaching to litigation material in children’s cases has long been upheld both according to common law and statute. Of course that strict confidentiality is not absolute. There are many instances in which it must yield to a conflicting public interest. Most commonly the reported cases consider the release of case papers in Children Act proceedings for use in a criminal prosecution that requires investigation of the same facts and circumstances examined in the prior Children Act proceedings … Here we are not concerned with the administration of criminal justice but with possible disciplinary proceedings … [19] There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of professional disciplinary hearings, particularly in the field of medicine … [20] … In those circumstances in my opinion the objection to production fell to be decided in accordance with [this] principle … , namely whether the public interest in effective disciplinary procedures for the investigation and eradication of medical malpractice outweighed the confidentiality of the records … A balance still had to be struck between competing interests. The balance came down in favour of production as it invariably does, save in exceptional cases.”
[46]The recent decision of the Court of Appeal in Napier v Pressdram Limited [2009] EWCA Civ 443 exemplifies the public interest in the effective regulation of the professions and in maintaining public confidence in them.[47]The second point is this. It is not for the family court to seek to evaluate, let alone to pre-judge, the strength or otherwise of the case to be investigated by the agency to which the disclosure is being made, whether that agency be the police or the GMC or whatever. The point arose in the criminal context in Northumberland County Council v Z, Y, X (by her children’s guardian) and the Government of the Republic of Kenya [2009] EWHC 498 (Fam), [2009] 2 FLR xxx, at paras [71]-[72]:
“[71] Mr Y and Ms Z say that they have already been punished enough and dispute that there is any basis for returning the matter to the police. I can understand why they say that, but it misunderstands the proper role of the family court in this situation. It is not for me to decide whether there is a case against Mr Y and Ms Z fit to go before a jury, let alone to decide whether or not they should be prosecuted. That is a matter exclusively for the relevant authorities – the police and the CPS – to consider. Indeed, it would not be right for me to refuse to direct disclosure otherwise appropriate merely because it seemed to me that there should not be a prosecution – that is not my function, and were I to arrogate it to myself I would be acting in an entirely inappropriate and, indeed, unprincipled manner. [72] The proper role of the family court in this context, as I explained in the two Re X cases, is to work together in co-operation with the criminal justice system to ensure the proper administration of criminal justice without unnecessary let or hindrance by the family court and, on the contrary, extending all proper assistance to the criminal justice system: see Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, at paras [35], [43], and Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, at paras [31]-[32]. My task is to decide whether there should be disclosure so that the proper authorities can consider whether or not to prosecute; my task is not to decide whether or not there should be a prosecution. The criminal justice system must take its course. If Mr Y or Ms Z wish to assert that there is no case against them, or that there should in any event be no prosecution – matters on which, I emphasise, I express no views whatsoever – then that is something for which they must look to the procedures of the criminal justice system (including those procedures which protect a defendant against an inappropriate, unfair or oppressive prosecution) not to the processes of the family court.”
[48]Now that may have been said in the context of an application for disclosure to the police with a view to possible criminal proceedings, but the same approach must, in my judgment, apply in the context of disclosure to a professional or regulatory body – here the GMC – with a view to possible disciplinary or regulatory proceedings: cf, A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 at para [5] (disclosure ordered though judge having “no idea whether there is any substance in any of the [complainant’s] concerns”).[49]The third point is this. The material with which we are here concerned is of a particularly intimate and sensitive nature. Medical information has always, for obvious reasons, been considered confidential and is protected as such by our domestic law. But it is also protected by Article 8 of the Convention. As the Strasbourg court said in Z v Finland (1998) 25 EHRR 371 at para [95] (and it said much the same in MS v Sweden (1999) 28 EHRR 313 at para [41]):
“the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession … 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.”
[50]Now one of the consequences of this is that if there is to be disclosure of materials which entails an interference with an individual’s right to respect for private life (and such is undoubtedly the case where, as here, the materials to be disclosed include a psychiatric report) then that interference will be justified only if there are what in Z v Finland at para [103] the Court referred to as “effective and adequate safeguards against abuse”. In relation to that, what was said in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 at para [53] was this:
“What those safeguards should be will, no doubt, depend upon the particular circumstances. The court’s approach in Z v Finland and MS v Sweden suggests, however, that typically what will be required is: (i) the maintenance of the confidentiality of the documents themselves – the documents should not be read into the public record or otherwise put in the public domain; (ii) the minimum public disclosure of any information derived from the documents; and (iii) the protection of the patient’s anonymity, if not in perpetuity then at any rate for a very long time indeed.”
[51]The obligations arising under Article 8 have a further important dimension, inasmuch as Article 8, read in conjunction with section 6 of the Human Rights Act 1998, imposes on every public body into whose hands such confidential information may come (including, for example, pursuant to an order for disclosure made by a family court) an obligation to take appropriate steps to preserve that confidentiality and to ensure that there are ‘effective and adequate safeguards against abuse’ of the kind mandated by Z v Finland and MS v Sweden: see A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 at para [55] and the form of order at para [77].

The legal framework: analysis – rule 11.4(1)(c)

[52]It is against this background that I turn to a consideration of rule 11.4(1)(c).[53]Rule 11.4(1)(c) is expressed in very wide terms. It relates to any “complaint”, the only expressed limitation being that it must be a complaint “against a person or body concerned in the proceedings.” Those latter words, as it seems to me, merely define the persons or bodies who are relevant for this purpose. In other words, the complaint must be against someone “concerned in the proceedings.” But there is seemingly no requirement that the complaint itself have any connection with the proceedings. So rule 11.4(1)(c) imposes no limitation whatever, either in relation to the subject-matter or nature of the complaint, or as to the form the complaint may take or as to the person, body or organisation to whom the complaint is made.[54]Moreover, the class of persons or bodies who are “concerned in” the proceedings is not, of course, limited to those who are parties. It embraces everyone who is “concerned in” the proceedings in whatever capacity, whether as witness, advocate, solicitor, guardian, officer or representative of a local authority, judge or whatever.[55]So, a party to children proceedings may, in principle, communicate whatever information relating to those proceedings he chooses in support of a “complaint” against X, irrespective of the subject-matter or nature of the complaint, irrespective of the person, body or organisation to whom the complaint is made, and even if the complaint itself has nothing whatever to do with the proceedings, so long only as X was “concerned in the proceedings.”[56]Now quite plainly the word “complaint” is intended to cover complaints made to disciplinary or regulatory bodies, but there is nothing in rule 11.4(1)(c) or, indeed, elsewhere in Part XI, to show that it is limited to such cases.[57]On the contrary, as I have pointed out, rule 11.4(1)(c) subsumes within itself the now revoked provisions of rule 10.20A(3) relating not merely to complaints to the GMC but also, and this, in my judgment, is a matter of considerable significance, complaints to an elected representative or peer. It is inconceivable that, in substituting rule 11.4(1)(c) for these parts of rule 10.20A(3), Parliament intended to take away from a party the right afforded to him in October 2005 to make disclosure to an elected representative or peer; this, after all, had been one of the aspects of the judgment in Re B (A Child) (Disclosure) [2004] EWHC 411, [2004] 2 FLR 142, that had given rise to great concern in some quarters. So this, as it seems to me, demonstrates that, whatever the true ambit of the word “complaint” in rule 11.4(1)(c), it plainly cannot be confined to complaints to disciplinary or regulatory bodies as that phrase would normally be understood.[58]Moreover, rule 11.4(1)(d) uses the same word “complaint” in a context which is clearly not confined to complaints to disciplinary or regulatory bodies and where one might well envisage such complaints (that is, complaints “regarding the law, policy or procedure relating to [children] proceedings”) being made not merely to politicians and policy makers but also, at least on one reading of rule 11.4(1)(d), to the media, campaigning organisations and other opinion makers.[59]It follows that, so long as it can properly be said to be a “complaint against” someone who was “concerned in” the proceedings, there is seemingly nothing to exclude from the ambit of rule 11.4(1)(c) complaints made, for example, to the police, to an employer or professional associate, to a professional or trade association, to a Member of Parliament or other elected representative, to a Minister of the Crown or officer of a local authority or other public body or even, on one reading, to a representative of the media or, indeed, to anyone else. I might add that, in principle there is no reason why such a “complaint” should not be capable of being embodied in legal proceedings before some court or tribunal, so long the proceedings embody or involve something that can properly be said to be a “complaint against” a person who was “concerned in” the children proceedings.[60]At the end of the day, of course, rule 11.4(1)(c) is confined, like rule 11.4(1)(d), to something that can properly, and within the context of Part XI, be called a “complaint”. Seeking to meet one of the mother’s submissions (see below), Dr Pelling submitted that “complaint” in rule 11.4 does not mean “complain” in the sense of ‘express a grievance’. It is, he says, obviously to be construed as making a formal complaint against a person or body in the professional or institutional context, that is, that person’s or body’s regulatory or disciplinary authority or officer etc. There is, he says, no question of complaints and disclosure being made to all and sundry. A disclosure to the press, for example, under guise of a complaint, would still, he says, be a criminal contempt of court.[61]For once, as it seems to me, Dr Pelling sets his sights too low. I am not here concerned to explore all the possible ramifications of rules 11.4(1)(c) and (d), and in the final analysis the meaning of the crucial word “complaint” can only be elucidated on a case by case basis. For present purposes it suffices to repeat that although plainly the word “complaint” is intended to cover complaints made to disciplinary or regulatory bodies it is equally plainly not confined to such cases. And there is a powerful argument for saying that it is intended to have a wide meaning. After all, as used in rules 11.4(1)(c) and (d) it is obviously not confined to, though it may well embrace, the special meaning, as given in the OED, of ‘a statement of injury or grievance laid before a court or judicial authority’. More naturally, and when read in the context of Part XI as a whole, it might be thought, pace Dr Pelling, that “complaint” does indeed have the more general dictionary meaning of ‘an utterance or statement of grievance or injustice suffered’.[62]Be all that as it may, the father’s proposed complaint here to the GMC is quite plainly, and even on the narrowest possible reading of rule 11.4, a “complaint” within the meaning of rule 11.4(1)(c).[63]Now sweeping though the liberty conferred by rule 11.4(1)(c), and for that matter by rule 11.4(1)(d), may appear to be, there are three important limitations and safeguards. And of critical importance is the fact that these are limitations and safeguards which have to be complied with if those involved are to be able to say that what they were doing was, within the meaning of section 12(4) of the 1960 Act, “authorised” by Part XI. Someone communicating information in circumstances which would otherwise involve a contempt of court because of the operation of section 12 of the 1960 Act, will be able to rely on Part XI as disapplying section 12, and thus as exonerating him from the penalties of contempt, only if section 12(4) of the 1960 Act applies, that is, if he has acted in a manner “authorised” by Part XI. So, in the final analysis, section 12 operates as the sanction for any non-compliance with the statutory scheme in Part XI.[64]What then are these three important limitations and safeguards?[65]In the first place, rules 11.4(1)(c) and (d) permit the communication of information only where it is “necessary to enable [the person complaining] to make and pursue” his complaint. The word “necessary” also appears, as part of the same package of reforms, in rule 10.28(4)(a). In relation to the latter rule, as I observed in Spencer v Spencer [2009] EWHC 1529 (Fam) at paragraph [31], “It is not for nothing, as it seems to me, that the rule uses the word “necessary”, that being a word familiar from the Strasbourg jurisprudence and, in my judgment, a word used here with the intention that it should be understood in the sense spelt out in the Strasbourg jurisprudence. Necessity, in the Strasbourg sense, has a meaning lying somewhere between ‘essential’ or ‘indispensable’, on the one hand, and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand. It implies the existence of what the Strasbourg jurisprudence calls a ‘pressing social need’: see, for a recent statement of the principle, Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at paragraph 120.”[66]In my judgment, the word “necessary” has the same meaning in rule 11.4(1). So, before deciding to communicate information, the person minded to make the disclosure must consider whether it is, in this sense, “necessary” to do so and must not make the disclosure unless satisfied that it is “necessary”. Nor should it be thought that this obligation is meaningless or unenforceable. It may no longer be necessary to obtain prior judicial sanction for disclosures permitted by rule 11.4(1), but, as I have said, someone communicating information in circumstances which would otherwise involve a contempt of court because of the operation of section 12 of the 1960 Act, will be able to rely on Part XI as disapplying section 12, and thus as exonerating him from the penalties of contempt, only if section 12(4) of the 1960 Act applies, that is, if he has acted in a manner “authorised” by Part XI. And in this instance a communication of information will not be “authorised” by rule 11.4(1)(c) unless it was “necessary”.[67]In this connection I should add one point which is obvious but which perhaps justifies emphasis. There is no requirement in rule 11.4(1) that the “complaint” itself be “necessary”. What has to be “necessary” is the communication of information “to enable [the] party … to make and pursue [the] complaint.”[68]The second safeguard arises from the limitations which rule 11.4(3) imposes upon the use which the recipient may make of the information which has been communicated to him. Again, a recipient of information to which section 12 of the 1960 Act applies who fails to comply with the requirements of rule 11.4(3) will not be able to show that he is “authorised” within the meaning of section 12(4) of the 1960 Act and will thus expose himself to the penalties of contempt.[69]The third limitation and safeguard – and this is fundamental – is that imposed by rule 11.2(2). To repeat:
“Nothing in [Part XI] permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.”
[70]So neither the person communicating the information nor anyone into whose hands it comes can, without prior judicial sanction, put the information into the public domain. And if they do so they will, since they will not be acting in a manner “authorised” by Part XI, be guilty of contempt of court.[71]Two examples will illustrate the point. There are, of course, many others. Although, as I have pointed out, rule 11.4(1)(c) may permit the use of information relating to children proceedings in other legal proceedings before some court or tribunal, so long as the proceedings embody or involve something that can properly be said to be a “complaint against” someone who was “concerned in” the children proceedings, the effect of rule 11.2(2) is to prevent the deployment of the material in any document filed with the court which is itself open to public inspection or at any hearing which is open to the public. And although rule 11.4(1)(d) would appear on one reading to enable a party to children proceedings to communicate information relating to the proceedings to a journalist, with a view to the journalist pursuing a media campaign complaining about the “law, policy or procedure” of the family justice system as it relates to children proceedings, the journalist will not be able to put the “information” he has received into the public domain.[72]Now at this point in the analysis it is useful to contrast the new statutory scheme under rule 11.4(1) with the ‘old’ law as it was before 2005. On one level the new scheme marks a radical change from the old. Much disclosure which previously would have required prior judicial sanction is now permitted without the need for any judicial involvement at all. And the width of the disclosure which is permitted by rules 11.4(1)(c) and (d) is, I cannot help thinking, much wider – and quite deliberately much wider – than would in all probability previously have been permitted by the judges. On the other hand, and this is of fundamental importance, the Article 8 and other privacy and confidentiality rights which are typically engaged when such disclosure is being contemplated are protected by the various provisions of Part XI to which I have drawn attention – in particular by rule 11.2(2) – and which had no counterpart even in rule 10.20A.[73]I referred above to the “effective and adequate safeguards against abuse” mandated by the Strasbourg court. As described in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 at para [53], these would typically require, in particular, the maintenance of the confidentiality of the documents themselves – the documents should not be read into the public record or otherwise put in the public domain – and the minimum public disclosure of any information derived from the documents. How does rule 11.4(1)(c) measure up to these requirements?[74]In my judgment the balance struck by Part XI in relation to rule 11.4(1)(c) plainly meets the requirements mandated by the Strasbourg court. After all, the limitations and safeguards to be found in rule 11.4(1), rule 11.4(3) and, more particularly, in rule 11.2(2), operate in much the same way as the limitations and safeguards previously suggested by the judges. It has not been suggested that rule 11.4(1)(c) is not Convention-compliant. Nor, in my judgment, could such a complaint sensibly be made. Rule 11.4(1)(c), read in conjunction with rule 11.2(2) in particular, shows the balance being struck in a way which, even if it requires no prior judicial sanction, is Convention-compliant, falling, as in my judgment it does, comfortably within the margin of appreciation afforded by Strasbourg to the United Kingdom.[75]Moreover, it is of the essence of the Convention that, because of the margin of appreciation, different structures may all be Convention-compliant. So the mere fact that the balance previously struck by the judges, in the absence of any relevant legislative framework, was held to involve a need for prior judicial sanction does not mean that that is crucial to any scheme if it is to pass muster under the Convention. It is not. Prior judicial sanction is not a requirement of the Convention. And prior judicial sanction is not a requirement under rule 11.4(1)(c).[76]It is against this background that one has to consider how, as a matter of principle, the court should exercise its power under rule 11.2(1)(c) to make a direction in a case falling within rule 11.4(1)(c).[77]There are three features of the new scheme which in my judgment indicate that the court should be cautious before exercising its power under rule 11.2(1)(c) in a case falling within rule 11.4(1)(c), or for that matter a case falling within rule 11.4(1)(d): i) In the first place, Part XI is part of what, as I have said, is a dramatic and radical change in the law giving effect to a new public policy. It is not for the judges to whittle away that policy, not least where a central part of the new scheme is the abolition of the requirement for prior judicial sanction for disclosure. The power conferred by rule 11.2(1)(c) is a residual power to be exercised, as it seems to me, with caution and only in limited circumstances. Too ready a willingness to exercise the power under rule 11.2(1)(c) – even worse, a judicial enthusiasm for the energetic use of rule 11.2(1)(c) – could all too quickly and easily lead to an impermissible emasculation of the policy underpinning rule 11.4(1)(c). ii) Secondly, there is the important fact that, as I have already explained, the balance struck by Part XI in relation to rule 11.4(1)(c) plainly meets the requirements mandated by the Strasbourg court, even though it contains no requirement for prior judicial sanction. iii) The third point is one which, understandably, has been highlighted by Dr Pelling. As he points out, in practical terms the court and the other parties need not know, and typically will not know, about a complaint being made and documents being disclosed. And, as he correctly points out, there is no duty upon a complainant party to inform the court or the other parties. Rule 11.2(1)(c) neither imposes nor implies such a duty. I agree. So the reality is that in practice it will be impossible to prevent much wider disclosure than hitherto. Parliament, he says, cannot have intended the courts or other parties to act like policemen, trying to monitor, impede, delay, or frustrate potential complaints in advance; nor can Parliament have intended a system of quia timet applications or own motion orders restricting disclosure to develop. I agree.[78]Lest it be thought that I have overlooked the point, I should mention Re M (Care Disclosure to Police) [2008] 2 FLR 390, to which Ms Farror referred me. That was a case which arose under rule 10.20A. Referring to the table in rule 10.20A(3), Baron J observed at para [21] that the effect of the rule was that:
“information relating to proceedings … can be communicated directly to a police officer acting in the furtherance of his/her role as a protector of children, when serving in a child protection unit or a paedophile unit of the police force. But only the text or summary of the whole or part of a judgment given in proceedings is to be communicated to a police officer for the purposes of a criminal investigation, unless this court gives express permission.”
[79]She continued at para [22], and this is the passage that matters for present purposes:
“The court has power to give directions in relation to disclosure and it seems to me that this is a proper way of protecting sensitive information. In every case, the judge has to exercise discretion as to whether the information is to be disclosed on the basis of the authorities to date and the balance of fairness.”
[80]Now the suggestion, as I understand it, is that this observation was, or embraced, a reference to the words “subject to any direction of the court” which appeared in rule 10.20A(2)(b) as they now appear in rule 11.2(1)(c), with the consequence, so it is said, that this indicates the approach which the court should now adopt in relation to its power under the latter rule.[81]As to this I would only observe that the point with which I am now faced, and, moreover, in a radically changed legislative scheme, was not the issue before Baron J. For the application which she was addressing was not an application to restrict a form of disclosure which was permitted by rule 10.20A(3) but, on the contrary, an application to authorise a form of disclosure which was not permitted by rule 10.20A(3). So the focus of her consideration was rather on rule 10.20A(2)(a) – the analogue of rule 11.2(1)(b) – than on rule 10.20A(2)(b) – the analogue of rule 11.2(1)(c). There is, in my judgment, nothing in what Baron J said which assists in the resolution of anything I have to decide.

The parties’ submissions

[82]It is convenient to deal first with the mother’s submissions and then the guardian’s submissions before turning to Dr Pelling’s submissions on behalf of the father.

The parties’ submissions: the mother

[83]The mother does not oppose the father making a complaint to the GMC in relation to Dr CM’s report about the father himself. But she is adamantly opposed to any disclosure of Dr CM’s report about her. She says that Dr CM was available to appear in court during the hearing in July 2008, when the father could have cross-examined him on his methodology. But he chose not to and instead, she says, is trying to cross-examine on paper. Moreover, she says, the father has brought no evidence to suggest that Dr CM’s reports were wrong or that his findings were incorrect. And if, as the father asserts, Dr CM’s methodology was incorrect, then it was equally incorrect with regard to the report on the father himself – so he can make his complaint by reference to that report and without sending the report on the mother to the GMC. Furthermore, she asks rhetorically but powerfully, how does any of this benefit N?[84]The mother adopts the written submissions made by Ms Farror on behalf of the guardian (see below) but in relation to rule 11.4(1)(c) submits, after a careful analysis of its provisions, that: i) Rule 11.4(1)(c) is “far too wide”. The omission of anything to limit the persons or bodies to whom a “complaint” can be made could, she suggests, lead to the bizarre situation that one can complain to anyone, a neighbour, friend or even the newspapers. Indeed, she says, this leaves open the possibility of the provision being abused, as any disclosure could be couched as a complaint, and the court would be powerless to prevent such abuse. ii) It must follow, she says, that the complaint can only be made to what she calls a relevant body, able to deal with that complaint in respect of some particular discipline, for example a complaint about a solicitor or a barrister to their respective disciplinary bodies or a complaint about a doctor to the GMC. iii) But in any event, the court ought, she says, to control such disclosure, for if the father is permitted to do what he wants, this will, as she puts it, open the door to disclosure of private and very personal material to all and sundry, under the guise of a complaint, with little or no independent evidence to support the alleged complaint. iv) Thus, she submits, what she calls the careful balance between the privacy protected by Article 8 and the public interest which has hitherto been so meticulously developed in the case-law will be blown away completely. Indeed, she says, this would be driving a ‘coach and horses’ through Article 8.[85]Accordingly, she submits, what should be disclosed is only Dr CM’s report about the father.[86]I should record that the mother suggested that as the GMC could only accept a complaint from the patient, and since she was refusing to consent to the disclosure of the report in relation to her, the GMC accordingly would not be able to deal with the matter vis-à-vis any complaint by the father about the methodology used by Dr CM in his assessment of the mother. Since the premise upon which this argument rests is, however, simply wrong – the GMC, as it has confirmed to the father, can accept a complaint from anyone – I need say no more about it.

The parties’ submissions: the guardian

[87]The guardian accepts that, should the father wish to pursue a complaint against Dr CM that his assessment of him (the father) was wrong or incompetent, he should be entitled to do so and to that end, he should be able to disclose Dr CM’s report on him. But she opposes any further disclosure; she does not see that further disclosure is necessary or justified. Moreover, if there is to be any further disclosure it should only be with the permission of the court, which it would be premature to seek at this stage.[88]In her written submissions on behalf of the guardian, Ms Farror made a number of points. Her primary contention was that whilst rule 11.4(1)(c) is broader in its ambit than rule 10(20)A, the court still retains a discretion as to the provision of the information, for under rule 11.2(1)(c) the disclosure remains subject to the direction of the court as before. The discretion is to be exercised, she says, in accordance with the principles to be found in the case-law.[89]In this connection she referred me (I rearrange the cases in chronological sequence) to In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 (sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725), A County Council v W and others (Disclosure) [1997] 1 FLR 574, Re A (Disclosure of Medical Records to the GMC) [1998] 2 FLR 641, Re X (Disclosure of Information) [2001] 2 FLR 440, A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (appeal dismissed, A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045), Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589 and Re M (Care Disclosure to Police) [2008] 2 FLR 390.[90]Her submissions, in the light of these authorities, were as follows: i) When considering whether to order disclosure, whilst not paramount the court should treat N’s welfare as being a major factor in its consideration. The guardian is particularly concerned about the effect that disclosure of confidential documentation in the proceedings, including the report prepared by Dr CM in respect of the mother and her medical records, as sought by the father, would have on N, for the disclosure of such personal material would be likely to cause the mother distress and upset which would be highly likely to impact adversely upon a child living in the same household. ii) Disclosure of Dr CM’s report on the mother and her personal medical records would be in breach of her Article 8 rights, for whilst such disclosure, if ordered by the court, would be in accordance with the law and could come within the category of being necessary in a democratic society for the protection of health or morals or the rights or freedoms of others, it does not in fact, it is submitted, meet a pressing need and is not proportionate to that need. As Ms Farror points out, the more drastic the interference the greater must be the need to do it. iii) Moreover, it is said, the reports and opinion which form the substance of the father’s proposed complaint against Dr CM have not been relied upon by either party as yet in the proceedings and have not been tested in court by examination of Dr CM by the father. So there has been no judicial appraisal of their content and the weight that should be placed upon them. The complaint is one of methodology and not, Ms Farror submits, of serious misconduct of the kind which on the authorities has been held to justify disclosure of material in children’s proceedings to the GMC. So, having regard to all these matters, the disclosure sought is not proportionate. iv) The need to maintain confidentiality would be totally defeated by the disclosure sought, especially if the complaint was the subject of a public hearing before the GMC, and anonymity of the parties and child was not preserved. Ms Farror adds that the new rights of the media to attend family proceedings do not affect this general principle of confidentiality, as their attendance and reporting is subject to regulation and the direction of the court. v) The need to encourage frankness in children’s proceedings would also, she submits, be severely prejudiced by the disclosure sought. a) Firstly so far as the mother is concerned she voluntarily consented to psychiatric examination by Dr CM on the basis that the report would be confidential and for the purpose of the proceedings only. As Ms Farror points out, referring to Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90 at para [23], there is no power in the court to compel a parent to have a psychiatric report prepared on themselves. It is, she says, clearly in the public interest that parents should be encouraged to co-operate by submitting themselves voluntarily to medical examination for the purpose of children’s proceedings, and they should not be deterred by fear of such reports being disclosed and made public at a later stage. b) The disclosure of Dr CM’s reports for the purpose of a complaint being made would also militate against the need to encourage frankness with regard to expert evidence. There is, she submits, a public interest in encouraging cooperation from independent experts and other professionals, and allowing disclosure of reports intended for use in confidential proceedings for the purpose of making a complaint against the author may deter experts from being willing to accept instruction in children’s cases. vi) Finally, she submits that disclosure of the extensive documentation sought by the father, which includes the report of Dr CM on the mother, court orders, statements of the parties, CAFCASS reports and transcripts and extracts of judgments and medical records, in any event goes far beyond what would be necessary to enable him to pursue his complaint. As Cazalet J said in A County Council v W and others (Disclosure) [1997] 1 FLR 574 at page 589, “It would be inappropriate to disclose any documents in the case which have no bearing on the matters with which the GMC are concerned.”[91]Ms Farror accepts that, set against the private interests of the child and the mother in ensuring continuing privacy and the confidentiality of the family proceedings, there must be balanced the competing factor of the public interest in complaints properly brought against medical practitioners being fully investigated. However, she submits, there is no compelling public interest justifying the disclosure sought by the father, and the balance is overwhelmingly in favour of the private rights of the mother and child to confidentiality. She accepts, though, that there is no objection to the father disclosing the report on himself by Dr CM for the purposes of a complaint to the GMC, for this would not interfere substantially with the rights of the child or the mother to confidentiality and under Article 8.[92]Ms Farror’s fall-back position is that, if the court were however to decide that there should be disclosure which included additional documentation, then the court should: i) consider a step-by-step approach to disclosure as ordered, for example, in A County Council v W and others (Disclosure) [1997] 1 FLR 574 and Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589; and ii) in any event impose the effective and adequate safeguards against abuse referred to in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 at para [56].

The parties’ submissions: the father

[93]Unsurprisingly, Dr Pelling on behalf of the father disputes the substance and force of much of Ms Farror’s submissions as I have just summarised them. But his real argument is much more fundamental and formidable, for he attacks the central assumption which, in truth, underlies most of the guardian’s case, just as it underlies the mother’s case. As he correctly says, the question now – since 27 April 2009 – is not whether to order disclosure but whether to restrict the right to disclose under the new rule 11.4(1)(c).[94]Dr Pelling poses the question: Is there a presumption now that disclosure under rule 11.4(1) is generally to be permitted and directions of the court under rule 11.2(1)(c) restricting disclosure only to be given in exceptional cases? Or is the effect of rule 11.4(1) purely to make any disclosure not automatically a contempt but the court still exercising control as it used to so that there is no presumption of disclosure but in each case restrictions will be considered on the merits in much the same way as when leave was formerly required?[95]He submits that the new Part XI represents a sea change, that there is a presumption of disclosure, which is only to be restricted in exceptional cases, and that while the power of the court to restrict remains, the result is very considerably to widen disclosure from what would have been allowed when leave was required. As a matter of policy, he says, the right to disclose under the new rule 11.4(1)(c) will usually prevail.[96]This case is developed in formidable and compelling detail but the most significant elements in Dr Pelling’s submissions can, I think, be summarised as follows: i) The new Rules comprised in rule 10.28 and Part XI were enacted to give effect to the Government policy of improving transparency in the courts dealing with family proceedings as set out in ‘Family Justice in View’, Cm 7502, published in December 2008. Dr Pelling has helpfully directed my attention to various passages in it which support his arguments but which there is no need for me to set out. ii) Referring to rule 10.28(4) (which empowers the court to direct that media representatives shall not attend a hearing which they would otherwise be entitled to attend), he submits that it is plain that rule 10.28 creates a presumption that the media are to be admitted, and that rule 10.28(4) is not to be interpreted as giving the judiciary the same discretion that they formerly had to exclude the media. To adopt the same approach as has traditionally been adopted would, he says, plainly defeat the policy objective of rule 10.28. The test for invoking rule 10.28(4) is, he submits, a high one. Mere assertion, speculation and sentiment will no longer do; there must, he says, be real evidence of serious detriment to the child’s interests, a party’s or witness’s safety, the orderly conduct of the proceedings, or to the proper administration of justice (as the case may be) before the presumption of rule 10.28(3)(f) can be reversed. iii) In the same way, he submits, the same principle applies to the new Part XI, that where information about children proceedings is now permitted to be communicated at an individual or institutional level – but not, as he observes, to the public – then there is a high test before the presumption that a party is free to communicate information as in rules 11.4-8 is reversed by a restrictive order of the court pursuant to rule 11.2(1)(c). That, he says, is the policy of the enactment and it is not for the judges to continue as formerly. Indeed, as he rightly comments, there would be little point in having the new Rules if that were so. iv) One should construe rule 11.4(1)(c) eiusdem generis with rules 11.4(1)(a), (b) and (d) where, he says, it is plain by comparison with the former rule 10.20A, that Parliament has drastically widened the disclosure which is permitted. It would, he adds, be impossible, and undesirable, for the court to police all this in the way it used to. v) Part of the policy embodied in Part XI is, he says, a simplification of the rules on disclosure. So, if the purpose is to make a complaint, then the intention is clearly that the complaining party shall be free to adduce any information that he considers necessary in order to make his complaint, and the decision as to what information to select should be his and not the court’s, save in exceptional cases. As he puts it, the days of tedious time-wasting and expensive document-by-document examination by the court before granting leave to disclose are now gone. And the burden is now not upon the applicant to justify disclosure, but on any opposing party to justify the non-disclosure of specific documents. It is, he submits, a high burden. vi) The importance of policy in this area of the law cannot be underestimated. The enactment of the 2009 Rules, giving effect to the new policy spelt out in the Government’s White Paper, represents a policy change in England and Wales to a much wider freedom to disclose to individuals or organisations, including regulatory bodies, though not to the public at large. The courts, he says, must change accordingly. There is, as he rightly says, a world of difference between the old system of disclosure, rigidly controlled by the court, leave always being required, and the new system of free disclosure without leave but with the power of the court to intervene and restrict. vii) Finally, as I have already remarked, and I need not rehearse the point again, he observes that in practical terms the court and the other parties need not know, and typically will not know, about a complaint being made and documents being disclosed.[97]Focussing more directly on the proposed disclosure in the present case to the GMC, Dr Pelling adds these further submissions: i) The right to complain about professional persons is of very great importance. As a matter of public policy or public interest the law generally upholds that right. Regulation of the professional person by the relevant professional body is the price that is paid for the privilege of belonging to a profession and for all the exclusive advantages that accrue to the practitioner. So, he submits, far from the privacy of legal proceedings being a reason to restrict the right to complain, it is rather a reason in favour of the right, for, otherwise, incompetent professionals will go quite unchecked: they can neither be exposed publicly because of the contempt law, nor complained against to their professional body. That is, he says, a sure recipe for the fulfilment of Bentham’s prophecy in words which, although directed more at the judiciary, also apply, he says, with equal force to expert witnesses: “In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the judge himself while trying under trial.” ii) In the present case there is, he says, nothing exceptional which would justify restricting the father’s right to complain. It is, he says, a run-of-the-mill case in the category of cases where a parent alleges some kind of personality disorder in the other parent detrimental to the welfare of the child. So if his right is judicially restricted then consistently so should every father's right be restricted who alleges professional incompetence in the author of a report on the mother examining whether she has a mental or personality disorder or not. iii) But the result of such an approach will, says Dr Pelling, be that charlatans will continue to flourish unchecked in the darkness of the secrecy of the Family Division and without their professional body (here the GMC) being able to do its duty to police their profession, to uncover incompetence, expose the charlatan, and protect the public and individuals affected. That, he submits, is not in the public interest and the effect would be gravely damaging to children and the fair and proper administration of justice generally. Parliament, he says, has now rightly elected to make it easier to complain about professionals in children cases and it is not for the judges to whittle that policy down on what he calls spurious grounds of privacy.[98]Dr Pelling accepts that a serious adverse effect on the child could justify restriction on disclosure but there is, he says, no evidence of that in the present case. It is not enough for the mother or the guardian merely to allege that she would be distressed and that this would impact on the child. Generally, he says, the welfare and interests of children will be enhanced by allowing complaints to be made about professionals in what he calls ‘the family law industry’.[99]Moreover, as he points out, disclosure in accordance with rule 11.4(1)(c) will not, because of rule 11.2(2), expose the mother’s and N’s personal circumstances and private information to the public gaze. And quite apart from that, the GMC has power to hold hearings in private or in public with anonymisation. No doubt, as he says, the GMC would have regard to any conditions on disclosure imposed by the court such as preserving anonymity. The father, as complainant, does not wish to be anonymised but has no objection to the mother’s and N’s names being kept from the public in any GMC proceedings.

Discussion

[100]Although I am not to be taken as agreeing with the fine detail of Dr Pelling’s submissions, and although I would not wish to associate myself with some of the language he has chosen to use, I agree both with the essential thrust of his argument and with the conclusions at which he would have me arrive.[101]In my judgment, and for the reasons which I have previously set out in the course of my analysis of rule 11.4(1)(c), I agree with Dr Pelling that the father is, in principle, entitled by virtue of rule 11.4(1)(c) to disclose both of Dr CM’s reports to the GMC, and moreover, to take that step without the need either to obtain the prior sanction of the court or to obtain the agreement of the other parties or to canvass their views or even to inform them of what he is proposing to do.[102]Furthermore, and despite everything pressed upon me by both the mother and the guardian, I am utterly unpersuaded that this is a case in which I should exercise my power to give a direction under rule 11.2(1)(c). In my judgment the protections afforded to the mother and N by rule 11.4(1), rule 11.4(3) and, most important of all, rule 11.2(2), taken together with the obligations which, independently of the rules, will attach to the GMC both at common law and under Article 8, afford them adequate – indeed, ample – protection against misuse or abuse of what I accept, and emphasise, is deeply private and personal information.[103]Were I in these circumstances to exercise my powers under rule 11.2(1)(c) I would, as it seems to me, be abusing my position and acting in a manner contrary to the new and, as I have said, radically changed policy which so clearly underpins Part XI. It is, as I have already observed, not for the judges to whittle away that policy. And the power conferred by rule 11.2(1)(c) is, for reasons I have already explained, to be exercised with caution and only in limited circumstances.[104]I agree also with the father that, if his complaint is to be properly understood in its true context, it is appropriate – indeed, in the Strasbourg sense “necessary” – for the GMC to be supplied not merely with Dr CM’s two reports but also, as the father proposes, with Dr CM’s letter of instruction, with the material Dr CM was provided with pursuant to the court’s order, and with the father’s statement of 12 April 2008, the relevant exhibit to his statement of 7 July 2008, and his detailed ‘critique’ of Dr CM’s methodology.[105]Although, given the change in the law since the application was first made, the point no longer arises, I should indicate that if this matter had had to be determined under the ‘old’ law I would have come to essentially the same conclusion. I need not rehearse what I have already said in paragraphs [42]-[51] above, but applying those principles I would, despite what has been said by the mother and the guardian, have made an order permitting the disclosure by the father to the GMC of the documents referred to in paragraph [104] above. That order would have contained protective provisions substantially in the form of those imposed in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673.

Concluding observations

[106]There are three concluding observations I should make for the assistance of the GMC and anyone else who in future may find themselves the recipients of information communicated pursuant to rules 11.4(1)(c) or (d). They are points I have already made but they deserve emphasis.[107]The first, is that the GMC, and any other recipient in the same position, is bound by rule 11.2(2). In other words, the fact that they have received the information does not entitle them to communicate it, either to the public at large or to any section of the public, unless they first obtain the permission of the family court on application to the court for that purpose. And if they breach that prohibition they will be guilty of contempt of court. The fact that the GMC may sit in public is, for this purpose, neither here nor there. If the GMC wishes any information supplied to it pursuant to rule 11.4(1)(c) to be put in the public domain it must first obtain the permission of the family court.[108]The second, is that the GMC, and any other recipient in the same position is bound by rule 11.4(3). And, again, if they fail to comply with the requirements of that rule they will be guilty of contempt.[109]The third, is that the GMC, as the recipient of such information – such confidential information – is itself under an obligation, both at common law and under Article 8, to take appropriate steps to preserve that confidentiality and to ensure that there are the “effective and adequate safeguards against abuse” to which I have referred above. And the due performance of this duty is all the more important and, indeed, onerous now, given that information which previously would have reached it only in accordance with a court order can now be communicated to it without prior judicial sanction, without the knowledge of the other parties involved in the proceedings, and in circumstances where the complainant’s real ‘agenda’ may not be immediately obvious.

Conclusions and order

[110]I propose, therefore, to make no order on the application. The father does not need my permission to disclose what rule 11.4(1)(c) permits and, as I have said, no case has been made out justifying my exercising the power under rule 11.2(1)(c). The only order that needs to be made is an order releasing the father from the undertaking he gave on 6 May 2009. I will make that order.

Cited in 8 later judgments