X (A Child), Re [2014] EWHC 2522 (Fam)

This judgment was delivered in open courtCase No OA10C00037[2014] EWHC 2522 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue BRISTOL DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 July 2014
Before
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
Re X (A Child)
Hearing Hearing date: 7 July 2014
The applicant (the father) appeared in person
Ms Tanya Zabihi (instructed by local authority solicitor) for the local authority
Mr Robin Tolson QC (instructed by local authority solicitor) for the Local Safeguarding Children Board
Ms Melanie Carew (of Cafcass Legal) as advocate to the court
Judgment
Sir James Munby, President of the Family Division :
[1]This is an application by the father of a boy, X, now 13 years old, who was the subject of care proceedings which began in October 2010. A few days later X was stabbed by his mother, suffering potentially life threatening injuries from which happily he has recovered. The care proceedings were concluded on 17 January 2012 with the making of a care order, which the father sought unsuccessfully to challenge in the Court of Appeal. A subsequent application by the father on 25 September 2013 for discharge of the care order was withdrawn by him. The most recent hearing in relation to the father’s contact with X was on 5 March 2014. The father has also made various attempts out of court to complain about the local authority’s actions.[2]In accordance with the relevant provisions of the Children Act 2004, the Local Safeguarding Children Board (LSCB) undertook a serious case review (SCR), which was completed in 2011. As required, the LSCB produced an overview report and an executive summary.[3]In contrast to the Welsh legislation (as to which see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628), the relevant English legislation has very little to say about the publication of SCRs. Both the Children Act 2004 and the relevant regulations, The Local Safeguarding Children Boards Regulations 2006, SI 2006/90, are silent on the point. It is dealt with in the statutory guidance issued pursuant to section 16(2) of the 2004 Act.[4]At the material time the relevant guidance was to be found in Chapter 8 of Working Together to Safeguard Children, published in March 2010. Paragraph 8.44 provided that the LSCB “should” provide an anonymised copy of various documents, including the overview report, to certain specified agencies and that the LSCB “should … publish only the SCR executive summary”. Paragraph 8.50 provided that “Neither the SCR overview report nor the [not relevant for present purposes] should be made publically available.”[5]The statutory guidance was changed by a ministerial letter dated 10 June 2010 which, so far as material, provided that LSCBs “should publish overview reports of all new SCRs initiated on or after 10 June 2010 … unless there are compelling reasons relating to the welfare of any children directly concerned in the case for this not to happen.”[6]The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.[7]Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:
“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”
The LSCB had in fact considered this advice at a meeting on 14 October 2011. Having noted, in particular, X’s age and awareness, his location in the local school and community and the impact of potential media intrusion on a vulnerable child, the LSCB concluded that the potential risk to X of publishing the executive summary was significant and resolved not to publish the report.[8]On 14 December 2011 the local authority issued an application in the care proceedings seeking “guidance from the Court in respect of disclosure of the Overview Report and Executive Summary.” The application:
“requested that the Court consider the relevance of whether the reports should be disclosed in their entirety or in part into the proceedings. If the Court determines that there should be no disclosure the Court is requested to comment and give guidance on disclosure to the parents and how this can be done.”
The application was supported by a statement from Mr D, who set out the facts summarised in paragraphs 6 and 7 above and continued:
“Notwithstanding the recommendation of [the LSCB] on 15 July 2011 that the Local Authority should make the Overview Report and Executive Summary available as part of the Court Proceedings – the Court is invited to consider if this remains helpful to the proceedings and, taking account of [the LSCB’s] concerns, to determine whether the Overview Report and Executive Summary should be disclosed to family members and into the proceedings.”
[9]On 19 December 2011 His Honour Judge Barclay, sitting as a Judge of the High Court, made an order directing that there should be no disclosure of the SCR report until further order. On 10 January 2012 Judge Barclay made an order at the IRH giving directions in the care proceedings, fixed for final hearing on 17 January 2012. The order contained the following recital:
“UPON the issue of disclosure of the LSCB report in these proceedings being raised by the Children’s Guardian and the court considering that it has no jurisdiction to make binding orders on the issue of publication which remains within the remit of the LSCB itself.”
At the IRH the local authority agreed, however, that the father should be allowed to read the overview report, which he did on three subsequent occasions: on 11 January 2012, 15 May 2012 and 13 August 2012. The care order, as I have already mentioned, had been made on 17 January 2012.[10]On 15 August 2012 the father wrote a letter raising a number of specific points of concern and complaint about the overview report. He referred to the fact that he had been allowed to read it and requested a copy, relying for this purpose on both the Data Protection Act 1998 and the Freedom of Information Act 2000. His letter was answered by Mr D in a letter dated 19 September 2012, the material parts of which were as follows:
“[The LSCB] did not publish the overview report or executive summary due to concerns about the potential impact on X if the report came into the public domain. In order to maintain control of the document any practitioners or managers who read the report came into the Council’s … Offices to see a copy of the report but were not permitted to remove it from the building. Lessons learned and the action plans resulting from the review have been disseminated to staff via workshops and briefings but all information has been anonymised. … [The LSCB] took the decision not to publish or disseminate the report for the reasons described above and has taken the decision not to provide copies of the report to anyone to ensure X is protected from any possible publicity. The report was submitted to the Court as part of the care proceedings and it was agreed in Court that your access to the report would be by viewing it at the … Council Offices. We are unable to disclose this report because the Local Authority considers that in complying with the duty this would endanger the physical or mental health of X himself (s38). Additionally, such disclosure would breach a Court Order made by His Honour Judge Barclay within the care proceedings, a copy of which, I understand, has been sent to you under separate cover by our legal department. Further, [the LSCB] is a statutory body in its own right and is not a public authority for the purposes of the Freedom of Information Act. We also consider that disclosure of this report could breach X’s right to privacy under Article 8 of the Human Rights Act 1998. Your request is therefore refused.”
Your request is therefore refused.”[11]On 7 May 2014 the father issued the application which is now before me. The application, purportedly issued in the care proceedings, named the defendant as the local authority and sought an order “allowing disclosure” of the overview report to the father and his “representative” “in order to consider whether the Report warrants an appeal” and an order that the local authority “make the necessary amendments to the Report before any publication is made.” The application came before His Honour Judge Wildblood QC, sitting in the Family Court at Bristol, on 21 May 2014. The father appeared in person. The local authority was represented by counsel. The LSCB was not represented. Judge Wildblood correctly characterised what was before him as a “free-standing application” for disclosure of the report, observed that it raised potentially complex issues of administrative law, and accordingly (and, if I may say so, quite properly) transferred the application to the High Court.[12]When the matter came on before me on 7 July 2014, the father appeared, as he had before Judge Wildblood, in person. He had filed two statements. The local authority was represented by Ms Tanya Zabihi. The LSCB was represented by Mr Robin Tolson QC. Ms Melanie Carew of CAFCASS Legal appeared at my invitation as advocate to the court, having been asked and accepted at a time when it was not known that the LSCB would be represented.[13]The arguments, both written and oral, helpfully and appropriately covered various matters which, in the event, there is no need for me to consider and which I do not. In the final analysis the father’s application turns on quite a narrow point.[14]The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.[15]The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.[16]Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.[17]Mr Tolson, without opposition from the father, invites me to treat the application as being, in substance, an application for judicial review, and the present hearing as an application by the father for permission to apply for judicial review. I am content to adopt that course, not least to spare the parties the inevitable delay and additional expense if I were merely to dismiss the application, leaving the father, if so advised, to make a further application to the Administrative Court.[18]Mr Tolson identifies two primary reasons why, as he would have it, I should refuse the father permission to apply for judicial review of the LSCB’s decision. In my judgment Mr Tolson succeeds on each point.[19]Mr Tolson’s first objection is founded on delay. As he points out, the relevant decision was that set out by Mr D in the letter of 19 September 2012. CPR 54.5(1) requires that a claim for judicial review must be filed “promptly … and in any event not later than 3 months after the grounds to make the claim first arose.” The court can extend time if there is good reason to do so. The father has not been able to identify any good reason why time should be extended. In my judgment there is no reason to afford him such indulgence.[20]Mr Tolson’s second objection is more fundamental. It is elementary that judicial review lies only on certain well recognised grounds – for example, procedural unfairness, error of law, misapplication of the statutory scheme or irrationality – none of which, Mr Tolson says, are here even alleged by the father. In my judgment Mr Tolson succeeds on this ground also.[21]The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.[22]Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.[23]I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.[24]Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.[25]Accordingly, the father’s application fails and must be dismissed.