You may recall the recent Holman J case in which a 16 year old subject of care proceedings had told the social worker and Guardian something personal which he did not want his parents to know, and the social worker and Guardian were divided as to whether this was something which could legitimately be kept from the parents
The application, this time with the parents represented, was decided by Mrs Justice Roberts.
Local Authority X v HI and Others 2016
It raises some interesting questions.
The Court was aware of what the information was, as were the social worker and the Guardian. The mother and father did not know what it was. All of the barristers knew the information, having agreed (upon instructions from their clients) that they would know it but not share it with them. It is almost impossible to fathom what the parents counsel were supposed to do if the parents were making guesses as to what it might be – save for just being plummy and saying “I can’t indulge in speculation”
The parents, who were the only people in the room who didn’t know what their son’s personal information was, really then had to work on the basis of Holman J’s categorisation of the information
- As to the substance of the information which I has shared, it was described by Holman J in an earlier judgment in this way:-
- “Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to the guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is in any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year old child who is in their care, They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.” (The emphasis is mine.)
The argument came into these two camps
A) The Guardian arguing that just as a doctor has a duty of confidentiality to a young person who has capacity (see Gillick) so do a social worker and Guardian have a similar duty if a young capacitous person tells them something and says that they want it to go no further. (also relying on the PD v SD, JD and X County Council  EWHC 4103 (Fam). which was the young person who wanted to undergo gender reassignment and did not want his adoptive parents to have any detailed information)
Thus, on the Guardian’s case as advanced by Dr Bainham, the duty of confidentiality which was found to exist as between a Gillick competent child and a doctor or other medical professional advising on, or offering, medical treatment would necessarily be extended so as to cover social workers and other professionals engaged with the young person concerned.
B) The Local Authority and the parents arguing that that was correct IF the case was not in Court, but once there were Court proceedings, the Article 6 right to fair trail would outweigh such a right to confidentiality, unless there were compelling circumstances.
- Specific guidance in relation to the obligations on a local authority in care proceedings was provided by Lord Mustill in the leading case of Re D (Minors)(Adoption Reports: Confidentiality)  AC 593. At page 615 D to H, his Lordship set out five principles with which the members of the full court were in agreement.
- “1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.
2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.
3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.
4. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.
5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”
Obviously an important issue to resolve – young people do tell social workers and Guardians things, and sometimes they would prefer that their parents did not know. If the Guardian is right here that the approach should be in line with Gillick, then the decision would be made by the individual social worker and Guardian, and if not, the decision would be made by the Court, with non-disclosure being the exception and not the rule.
In the context of the present application, it is important to state that the information in respect of which I seeks to maintain privacy is not information which will have a bearing on any evaluation undertaken by the court in relation to the issue of whether or not the care which the second and fourth respondents have given, or may give in future, to I is likely to cause him to suffer significant harm such as to justify the making of a final care order. In my judgment, it will have no bearing whatsoever on any judicial investigation into the quality of the care they have provided in the past or the care they are likely to offer to I in the future in terms of the sort of care it would be reasonable to expect a parent to provide. Further, the local authority accepts that the information has not, and will not, affect or influence their decision-making for I in terms of the final care plan which is now before the court.
It would be very difficult to withhold from the parents information which went to whether a particular allegation in the case was true or false, or where the child was expressing a view about where his future home should be, but in this case, the Court was saying that the information was personal and not something that would have any bearing on the outcome of the case.
Father’s counsel disagreed,
- In his written skeleton (para 117), Mr Day on behalf of I’s father says that his client wishes to utilise the material at the forthcoming final hearing. He raises concerns that I “will become involved [in] gang culture and criminality and that corporate care will not be in his best interests. The sensitive information very much supports and grounds that contention and is required for there to be a fair trial.”
- With respect to Mr Day (who knows the nature of the confidential information), I can see no correlation at all between the information which I has imparted and the likelihood of his becoming involved in gang culture or the sort of criminality which is sometimes associated with such involvement or membership. The link between the two is not even tenuous in my judgment. Furthermore, the statement of intent to use the information at the forthcoming trial is made in an evidential vacuum. As matters stand, I’s father does not know anything about the information and he will not know unless and until the court authorises its disclosure. Mr Day seeks to widen the ambit of his assault on confidentiality by asserting that the material is relevant to that part of his client’s case which relates to an allegation that the local authority will not provide appropriate care for I if a final order is made. It seems to me that this is a matter for the trial judge who will be responsible for scrutinising with the utmost care the final plan advanced by the local authority.
What was the right test? And was the information relevant? The Judge decided this
Analysis and Discussion
- The local authority was absolutely right to make this application. In my judgment, Holman J was also absolutely right to rule that the matter must come back to be dealt with on notice to the respondents.
- In terms of the correct approach to the issue of disclosure, I do not accept that I can consider issues flowing from I’s ‘personal autonomy’ in a vacuum. In my judgment, Mr Day is correct on this point. Gillick and Axon were both cases which did not involve any consideration of the engagement of Article 6 rights. In each, the applicant was seeking declaratory relief but no more. In this case, both Article 6 and Article 8 rights are engaged and accordingly the Re D test must form a part of the overall balancing exercise which I have to perform. However, it seems to me that the principles to emerge from Gillick and Axon become relevant at the stage of the balancing exercise where judicial focus is on the welfare of the child or young person. Respect for his or her views and the consequences of overriding those views where they are genuinely and strongly held must, in my judgment, form part of those welfare considerations.
- Dr Bainham makes the valid point on behalf of the Guardian that if Gillick principles are not accorded priority, any ‘looked after’ child in these circumstances would be at a disadvantage since his views would be accorded less respect because of the fact that he is at the centre of contested care proceedings. Whilst I can see the force of that submission, it does not in my judgment mean that I can disregard the equally important considerations which flow from the engagement of the respondents’ Article 6 rights. I’s views are important. They are entitled to considerable respect but they are one aspect of the overall balance which has to be achieved in this case. In my judgment, they are not determinative of outcome. Further, the fact that neither of his parents is currently exercising day to day parental care for I does not dilute the parental responsibility which they currently share with the local authority.
- The first question which must be addressed is that of relevance. Nothing which was said by I impinges upon, or affects in any way, the local authority’s case in relation to the respondents’ allegedly deficient parenting. On behalf of the local authority, Mr Krumins submits that it is important to distinguish in this context between the relevance of the information and the weight which can properly be attached to it. In relation to relevance, he contends that the threshold is low. Nevertheless, he concedes that the information is unlikely to assist the trial judge and will ultimately make no difference to outcome. I bear in mind the observation of Thorpe LJ in Re M (Disclosure) that if there is anything within the local authority’s care plan which gives rise to concerns, that may well be adverse to the respondents’ case should disclosure be withheld. However, where the principal challenge to, and defence of, the care proceedings amounts to a denial by the second and fourth respondents of the poor parenting which gives rise to the perceived risk of significant harm to I, it is difficult to see how a care plan which involves removal from that harmful environment can be said to raise independent concerns. That will be the central issue for the trial judge to determine.
- I have significant concerns about whether or not the information for which protection is sought is truly relevant to these proceedings. Whatever subjective views Mr Day may seek to advance on behalf of I’s father, it is difficult to see how any objective analysis of the information could lead to the conclusion that it has any relevance to the issues to be determined later this month. However, for the purposes of my judgment and on the basis that Mr Day is right and it has some tangential (or greater) relevance, I must go on to apply the balancing test set out in Re D.
Having decided to approach the matter on the Re D principles, the Judge went on to consider whether disclosure would present some risk of significant harm to the child
- Thus, the next question to be answered is whether disclosure of this information would involve a real possibility of significant harm to I.
- The Guardian and the local authority are not agreed on this aspect of the case. The local authority accepts that disclosure would be likely to expose I to an awkward and embarrassing situation, but no more. Within the material which has been put before the court is a statement prepared by a social worker on behalf of the local authority. It is dated 8 April 2016. In that statement, the social worker, AB, expresses the view that I may be embarrassed or ashamed as a result of disclosure. However, she acknowledges, too, that he may in future be reluctant to share information with professionals if the information is revealed to his parents against his wishes. Her statement also raises an issue as to whether what he said was true in any event.
- The concerns of the social worker find strong reflection in the Guardian’s evidence. She tells me that, knowing what she does about I’s father and step-mother, she believes neither ‘would … be able to respond to the information in a child-centred way at all, and that this could have emotionally devastating consequences for [I]’. She sets out in her evidence a report which she had received from a colleague who was present at a recent LAC review which was attended by I’s father and step-mother. One of the issues for discussion on that occasion was their willingness to engage in some work with an appropriate professional in order to assist their understanding of I’s needs. Their presentation on that occasion was said to be “extremely oppositional, even in [I’s] presence”. The report which emanated from that meeting is recorded in the body of the Guardian’s statement in this way.
- “It was appalling … [I’s father] totally took over, attempting to intimidate the professionals, leading to … [I] putting on the hood of his jacket and pressing his forehead onto the table in what appeared to be a combination of anxiety, frustration and sheer embarrassment. His wife [I’s step-mother] then started a wholly inappropriate and crass attack on the social worker – how can she do the job at her age, not having children. Basically, following father’s continued ranting and finger-pointing at me, I had no choice but to prematurely bring the review to an end. I’m far from convinced that the LA should be promoting contact for [I] with them. Before there can/should be any relationship work undertaken, perhaps father in particular should be advised to see his GP regarding having anger management and/or counselling. He certainly won’t be invited to the next review unless he makes some radical changes.”
- The Guardian expresses her very real concerns that the good relationship which I has managed to establish with his social worker and foster carer may be damaged by disclosure of the information which he wishes to keep private. Those relationships are important to him because they enable him to confide in these professional carers and, in turn, to receive appropriate support and guidance. To override his express wishes may undermine his trust in professionals making it difficult for them to offer the level of help and support from which he has so clearly benefitted to date. This would be entirely counter-productive and inimical to his best interests. She has no confidence in either the father’s or step-mother’s ability to respond appropriately or sensitively to something which I regards as a personal and embarrassing episode and she regards the prospects of disclosure as being ‘highly detrimental’ to his welfare.
- Thus, it seems to be common ground that disclosure to the parents will cause I emotional upset and some distress. The disagreement centres on the level of emotional harm and whether or not this is likely to be “significant”.
- On behalf of the father, Mr Day submits that “the worst reaction could be that the father is dismayed, disappointed and at worst may remonstrate with his son”. On behalf of I’s step-mother, Mr Fletcher reminds me that I has been told by his social worker that it is not possible for her to provide him with a guarantee that anything he tells her will remain private as between them. He points to the absence of any direct statements by I himself as to his fear of his parents’ reaction. He invites me to consider whether any perceived harm could be mitigated by putting in place safeguards so as to ensure that I was protected from any such reaction from his father and step-mother as that anticipated by the Guardian.
- I have to bear in mind that I is a very vulnerable young man. He is not yet 16 years old and has already been the subject of two separate sets of care proceedings. He has been found to have suffered neglectful and abusive parenting at the hands of his mother. His experience of life was fractured when he left his home with her to live in a completely different part of the country with his father and step-mother. His unhappiness and distress in that placement is reflected in his attempts to abscond and his absolute resistance to any return to that household and any form of continuing relationship with his father and/or his present wife. Whilst I accept that it is an untested account, I regard the record of what transpired at the recent LAC review as providing a valuable insight into what I is likely to be experiencing at the present time in terms of the conflict which appears to exist between his family and the professionals who are currently caring for him. The picture of I which emerges from the record of that meeting is one of a young man who has few, if any, coping strategies for dealing with that conflict. I do not accept that the absence of a specific reference by I to fear of his father’s reaction should lead me to a conclusion that he has no such fear. On behalf of the mother, Miss Bartholomew supports the Guardian’s position that there is a real risk of further significant harm to I in the event of disclosure. She records in her written submissions the mother’s historic and ongoing concerns about the aggressive and inflexible behaviour demonstrated by his father. She is concerned that his reaction to the information may well place I at risk of significant harm.
- In my judgment, whether one applies the label of “significant” or “real” harm to the question, there is indeed a real possibility of significant and detrimental harm to I if this information is disclosed. In his evidence in response to the local authority’s case, I’s father has denied entirely that his son is suffering, or has suffered, from any significant emotional harm. He accepts that he has shouted at I but justifies this on the basis that, “If you don’t stand up as a parent, the children are going to walk on you”. It is said that he referred to I in highly derogatory terms because of his educational difficulties. He does not admit using any such inflammatory terms but still refers to I in his statement as “this little boy”. I am satisfied that there is a clear risk that the consequences of disclosure of this material may well result in I’s disengagement from the professionals who have provided him with guidance and support since his reception into care. He has been damaged by his experience of family life in recent years and findings in relation to threshold have already been made in the context of the interim care order which sanctioned his removal from his father’s home. If his current support structure were to be put at risk for any reason, he may well withdraw and internalise issues thereby putting his happiness and future wellbeing at significant risk.
- I bear in mind, too, that whether or not the trial judge makes a final care order at the conclusion of these proceedings later this month, any prospect of repairing the relationship between I and his father will inevitably have to involve some form of therapeutic input from an appropriate professional or professionals. In this respect, it is essential that I believes that he can repose trust and confidence in those professionals and the care and support they will be providing. It would be harmful to him, and significantly so, if the chance to restore some form of relationship between parent and son in future were jeopardised because of a disclosure now of information which he regards as confidential.
The next step was to balance the article 6 rights and article 8 rights.
- In these circumstances, the final step is to weigh the interests of the respondents in having the opportunity to see and respond to the material. This involves a rigorous consideration of the engagement of their Article 6 and Article 8 rights.
- Given what I have already said in my judgment, I can dispose of the issue in relation to their Article 8 rights in fairly short order. These rights, whilst engaged, cannot take precedence over I’s Article 8 rights and he is clearly expressing a wish for no communication with his father or step-mother at the present time. As Yousef makes clear, the child’s rights are the paramount consideration in any balancing of competing Article 8 rights.
- As to the respondents’ Article 6 rights, the relevance of the information to outcome has already been addressed. In my judgment, it is of tangential or minimally indirect relevance at its highest and is completely irrelevant at its lowest. The local authority accepts that it will not impact upon outcome or future planning for I. The respondents’ rights to a fair trial are, of course, absolute but, as Lady Justice Hale acknowledged in Re X, in deciding how to conduct a fair trial, it is perfectly reasonable to take account of the facts and circumstances of the particular case with which the court is dealing. The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing. Whilst I accept that any departure from the usual requirements in relation to the disclosure of evidence in an adversarial trial must be for a legitimate aim and proportionate to that aim, the Court of Appeal has held that protecting the welfare of vulnerable young persons is a specific and undoubtedly a legitimate aim.
- In my judgment, the harm which would be caused by disclosure of information which has very little, if any, relevance to the issues which need to be determined by the court would be wholly disproportionate to any legitimate forensic purposes served. I am entirely satisfied that depriving the respondents of the opportunity to have this information will not deny to any of them a fair trial. Disclosure would, however, be a breach of I’s Article 8 rights.
- Considering all these matters in the round, I have reached the clear conclusion that the case for non-disclosure of the information which is the subject of the Guardian’s current application is compelling. The circumstances of this case, looked at in the round, do make it exceptional and I regard it as entirely necessary that I’s confidence and privacy in this information is maintained. I cannot overlook the fact that, as a Gillick competent young person, he has expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise which I have conducted
This particular passage has some broader significance – the right to a fair trial does not mean that a person gets to run the case exactly as they please, the Court controls the content and nature of the hearing whilst still having the duty to secure that the trial is FAIR
The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing
Finally, the Judge recognised that the parents knowing that something was being kept from them (even if most of us can guess what it might be) was difficult
Finally, I would conclude by echoing the words of Holman J which are exquisitely apt in this case. I, too, am deeply conscious that whenever disclosure issues of this kind arise, there is inevitably a problem once parents or other interested respondents are put on notice that there exists some information in respect of which the court has supported an application for non-disclosure. As Holman J observed, ‘”conspiracy theory” and imaginings may inevitably take over’. The parents and step-mother may well be concerned that the information is graver than it actually is. I would hope to reassure them by my finding in relation to the likely relevance of the information to the issues which are at stake.