The President of the Family Division has given important guidance about the correct approach to disclosure of documents containing personal information in Court of Protection proceedings involving an adult who lacked capacity. Jennifer Oscroft acted for the Local Authority in this case.
The appellant (R), the birth mother of a young adult who lacked capacity (C), appealed against a decision of His Honour Judge Cardinal ( EWHC 1424 (COP)) that she was not entitled to see certain reports prepared by the respondent local authority (X LA) in response to her application for contact with C. C had been adopted as a very young child. R's indirect contact had stopped a few years previously when C's adoptive parents separated. R wished to re-establish contact and was given permission to apply to the Court of Protection. X LA filed a clinical psychologist report and three social worker statements relating to C as required by the court. HHJ Cardinal acknowledged there was a presumption in favour of disclosure unless a good reason to the contrary was shown and applied the test of 'strict necessity', bearing in mind C's best interests and weighing the competing rights of the parties under the European Convention on Human Rights 1950 art.6 and art.8. HHJ Cardinal ruled that R could see a redacted copy of the report, but that the three statements could be disclosed to R's legal representatives on the basis that the information would not be divulged to R.
Mr Justice Munby confirmed that the jurisdiction in children's cases to depart from the principle of open justice and from other aspects of ordinary civil procedure by refusing disclosure of materials to the parties was clearly established and that the same principles applied in Court of Protection cases relating to adults. However, non-disclosure remained very much the exception and not the rule. The test was one of "strict necessity". Disclosure was never a binary question; it might often be ordered, but may be subject to certain safeguards and the position initially arrived at was to be constantly reviewed. As to the decision below, Munby J held that HHJ Cardinal's conclusion concerning the redacted report was correct: there was nothing in the full report which would help R, yet there were compelling reasons why someone in her position should not receive disclosure of private information which, outside of the litigation, she would have no right to. With regard to the three statements however, the relevant question was whether C's interests made it necessary for R not to see the statements, rather than whether it was necessary for R to see them. Recognising the obvious necessity to prevent disclosure of anything that might enable R to identify or trace C, there was less obvious necessity to restrict R's access to other personal information about C and the judge had not explained what it was about "all" the information that made it necessary for the statements not to be disclosed, and why it was permissible for R's legal team, but not R, to see them. Therefore, the parts of the judge's order relating to disclosure of the statements were to be set aside and the matter remitted to the judge for reconsideration.
The test therefore to be applied, endorsed by Munby J and taken from the speech of Lord Mustill in Re D (Minors) (Adoption Reports: Confidentiality)  AC 593, is as follows:
- The court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.
- 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.
- 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.
The issue of lawyer-only confidentiality rings remains an interesting and vexed question. Whilst acknowledging that the courts have adopted procedures whereby disclosure to legal representatives only may be permissible (see: Official Solicitor to the Supreme Court v K and Another  AC 201, a wardship case, and R (Mohammed) v The Secretary of State for Defence  EWHC 3454 (Admin), a recent control orders case dealing with a 'closed material procedure'), Munby J recognised the obvious practical difficulties which arise in adopting such a procedure, in particular the very practical difficulties created between lawyer and client. In summary the principle that such a procedure might be adopted was accepted, but on the particular facts of this case, the issue was avoided given the deficiencies in the Judge's reasoning below.
For full transcript of the judgment click here.