Jersey Unreported Judgments

[2009]JRC191

royal court

(Family Division)

8^th October 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Allo and Newcombe.

 

Advocate E. L. Hollywood for the Applicant.

Advocate C. Hall for the First Respondent.

Advocate T. V. R. Hanson for the X Children.

The Second Respondent was not present and not represented.

judgment

the commissioner:

1.        On 27^th August, 2009, the Court gave leave under Rule 25 of the Children (Jersey) Rules 2005 ("the Children Rules") for the disclosure of documents filed in care (public law) proceedings involving the X children.

Background

2.        The X children have suffered significant harm during their short lives.  It may be that this suffering is sufficient to found an action in negligence now or in the future against the States of Jersey, or successful claims for compensation from the Criminal Injuries Compensation Board.  Mr Hanson submitted on behalf of the X children that such proceedings or claims would be assisted by access to the papers filed within the care proceedings. 

3.        Rule 25 of the Children Rules is in the following terms:-

"25.  Confidentiality of documents

(1)       No document, other than a record of an order, held by the Court and relating to proceedings may be disclosed, other than to -

(a)       a party;

(b)       the legal representative of a party;

(c)       a person appointed under Article 75;

(d)       a welfare officer; or

(e)       an expert whose instructions by a party has been authorized by the Court,

without leave of the Court.

(2)       Nothing in this Rule shall prevent the notification by the Court of a direction under Article 29(1) to the Minister.

(3)       Nothing in this Rule shall prevent the disclosure of any document relating to proceedings by a welfare officer to any other welfare officer unless that other welfare officer is involved in the same proceedings but on behalf of a different party."

4.        Although reference at Rule 25(1)(b) is made to documents being disclosed to legal representatives, it was submitted by Mr Hanson that this applies to those representing parties within the proceedings under the Children (Jersey) Law 2002, and not any other proceedings which are not subject to the same confidentiality protections which apply in children's proceedings.  Therefore, if documents from the care proceedings are to be given to lawyers (other than Hanson Renouf) who may in the future act for the children, in order to ascertain if future proceedings would be in their interests, or if claims can be made to the Criminal Injuries Compensation Board, then leave of the Court appears to be required.

5.        There are no Jersey cases directly on the issue of disclosure of documents in public child law cases into civil proceedings.  However, in the case of In the matter of Re D (Disclosure: Private Law) [2009] JRC 067A, a case concerned with disclosure for criminal cases, leave was given for the disclosure of documents to the police legal advisers for the purpose of determining in criminal proceedings against the husband (and for no other reason) whether the documents disclosed undermine the prosecution case or would affect whether it was in the public interest to prosecute the husband.  The cases cited to the Deputy Registrar were English cases (there being no local authority) which related specifically to disclosure of documents from family proceedings (mostly care proceedings) into criminal proceedings, whether to assist the prosecution or the defence.  The Deputy Registrar referred in particular to the case of Re EC (Disclosure of Material) [1996] 2 FLR 725 (sub nom Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 which gave guidance as to disclosure into criminal proceedings and the matters to be taken into account including specifically:-

"The public interest in the administration of justice.  Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice."

6.        In the English case of Re X (Disclosure of Information) [2001] 2 FLR 400 disclosure of papers within care proceedings to four victims of abuse, to their mothers, their social workers, health professionals and legal advisers was sanctioned to enable them to obtain therapeutic help and claim for compensation.

An extract from the headnote in Re X states:-

"The main purpose of the disclosure was to enable the children to see that their evidence had been accepted, to enable them to obtain therapeutic help and to help them make a claim for compensation."

Mumby J, in the judgment confirmed that Re X, like the present case, was very different from the vast majority of such cases:-

"[17]   Before turning to consider these authorities, however, two preliminary observations are in order.

[18]     The first is this.  Typically, when disclosure is sought of court papers relating to a child involved in family proceedings, the case exhibits three features which, except insofar as possible disclosure to the Criminal Injuries Compensation Authority arises, are wholly absent in the present case.  In the typical case - indeed, probably in the vast majority of such cases - what is sought is:

(i)        disclosure of material to some person or agency not directly involved in the family proceedings, that is, to an 'outsider';

(ii)       in circumstances where the material is likely to be deployed in some public or semi-public manner - in other words in a manner breaching what Balcombe LJ called in Re Manda (1933) Fam 183, 195E, sub nom Re Manda (Wardship: Disclosure of Evidence) (1933) 1FLR 205,215, the 'curtain of privacy' imposed by the family court for the protection of the child; and

(iii)      in circumstances where, as Balcombe LJ pointed out in the same case at 197E, 217, the disclosure cannot be said to be for the positive benefit of the child, and may even be prejudicial to the child.

He went on to confirm:-

"[20]   The present case is quite different. What is sought is:  

(i)        disclosure to persons directly involved in the family proceedings and a limited class of people standing in a close and confidential relationship with them, that is, to 'insiders';

(ii)       in circumstances where, except in relation to possible claims to the Criminal Injuries Compensation Authority, there will be no public, indeed no further dissemination, and thus no breach of the 'curtain of privacy'; and, moreover,

(iii)      in circumstances where the disclosure will be for the positive benefit of the children.

7.        In Re Manda (Wardship: Disclosure of Evidence) [1993] 1 FLR 205, a case concerning the disclosure of documents in wardship proceedings for the purpose of potential negligence claims against the council, the English Court of Appeal (per Balcombe LJ) held:-

"If, as is usually the case, the material is to be disclosed for use in other proceedings, the public interest in the administration of justice requires that all relevant information should be available for use in those proceedings."

8.        In this case it had been agreed between Mr Hanson and Miss Hollywood for the Minister that leave should be sought:-

"1.       For disclosure of all the documents filed within the care proceedings .... to any legal representatives of the children and/or any expert they instruct for the sole purposes of investigating and bringing proceedings or pursuing claims, for damages against any person or the States of Jersey in respect of the X children.

2.        For disclosure of all the documents filed in the care proceedings and .... 1 to any legal representatives of the Minister for Health and Social Services, or the States of Jersey and/or any expert s/he instructs for the sole purposes of investigating and bringing or defending proceedings or pursuing claims, for damages against any person of the States of Jersey in respect of the X children.

3.        For disclosure of all the documents filed in the care proceedings ....to the Criminal Injuries Compensation Board for the sole purpose of investigating any compensation claim relating to the X children.

4.        For disclosure of the documentation .... to any expert charged with treating any or all of the children for any emotional, psychological or physical harm they may have suffered or suffer in the future referable to their childhoods for the purpose of any such treatment."

It had been further agreed that the question of leave to disclose the documents referred to above into any future proceedings (other than the instant proceedings) be reserved for a future application.

9.        Mr Hanson submitted that it was in the children's interests for leave to be given for these papers to be disclosed.  The purpose of the disclosure was to enable legal advisers to the children to investigate and advise on the bringing of proceedings and to enable experts to treat them.  It was disclosure to a limited class of people standing in a close and confidential relationship with the children i.e. to 'insiders'.  We agreed with Mr Hanson that it was in the interests of the children that this should be facilitated. 

10.      However, we would not have regarded it as appropriate at this stage to have gone further and authorised the disclosure of such documentation in any future civil proceedings.  It would be in such proceedings that the "curtain of privacy" would be most likely to be breached.  We do not at this stage know when proceedings will be brought, the nature of those proceedings and whether such proceedings will be brought on behalf of all or just some of the children.  The issue of disclosure in such proceedings must therefore be reviewed at the relevant time and we therefore granted leave subject to that reservation.

Authorities

Children (Jersey) Rules 2005.

Children (Jersey) Law 2002.

In the matter of Re D (Disclosure: Private Law) [2009] JRC 067A.

Re EC (Disclosure of Material) [1996] 2 FLR 725 (.

Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76.

Re X (Disclosure of Information) [2001] 2 FLR 400.

Re Manda (Wardship: Disclosure of Evidence) [1993] 1 FLR 205.