Durham County Council v Dunn

In recent years, legal developments have made it easier for claimants to pursue civil actions based on allegations of historic physical or sexual abuse. For example, local authorities and other potential defendants can more easily incur vicarious liability for violent or sexually abusive assaults committed by their employees against children in care: Lister v Hesley Hall Ltd [2002] 1 AC 213; [2001] UKHL 22. Most significantly, previous difficulties regarding limitation periods have been eased by A v Hoare [2008] 1 AC 844; [2008] UKHL 6. The present case is an example of these developments. The claimant was a resident at Aycliffe Young People’s Centre in Newton Aycliffe (the Centre) between 1980 and 1984. The Centre was the responsibility of Durham County Council (the Council). On 17 December 2007, the claimant’s solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s. The letter included a request for the disclosure of certain documents. Some documents were disclosed in redacted form. On 25 March 2011, the claimant issued these proceedings. This appeal is concerned with the ambit of the Council’s duty of disclosure. It is a second appeal for which permission has been granted because it raises important issues of a kind that will arise in other cases. Moreover, it is common ground that, at the moment, legal practitioners and District Judges do not all approach the issues in a consistent way. In particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR). The procedural history of this case illustrates the problem. Before turning to that history, I shall set out the relevant provisions of the DPA and the CPR.

By section 7(1)(c) of the DPA, subject to various provisions, an individual is entitled

“to have communicated to him in an intelligible form –

(i)

the information constituting any personal data of which that individual is the data subject, and

(ii)

any information available to the data controller as to the source of those data … ”

The information must be requested in writing and a modest fee is payable: section 1(2).

The provisions governing standard disclosure under the CPR are contained in Part 31. Rule 31.10(2) provides for the service of lists of documents. Rule 31.10(4) provides:

“The list must indicate –

(a)

those documents in respect of which the party claims a right or duty to withhold inspection …”

Rule 31.19 provides:

“(1)

A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.”

Such a person must make a statement in writing that he has such a right or duty and setting out the grounds on which it is claimed, rule 31.19(3). A party may apply to the court to decide whether the claim should be upheld: rule 31.19(5). The court may require the person seeking to withhold disclosure or inspection to produce the document to the court: rule 31.19(6)(a). The court may also invite any person, whether or not a party, to make representations: rule 31.19(6)(b). Finally, rule 31.19(8) provides:

“This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.”

On 17 December 2007 the claimant’s solicitors wrote to the Council intimating the claim. The factual allegations were briefly summarised as follows:

“Mr Dunn was sent to Newton Aycliffe between 1981 and 1984. Whilst at Collingwood House, a senior Care Worker called Mr Morgan was violent towards him on six or seven occasions. He was then transferred to the Special Unit. Whilst there he was brutalised on several occasions by Mr Wilkinson and another member of staff both inside and outside the Special Isolation Cell. Additionally he witnessed abuse of other boys in a violent way on approximately 50 occasions.”

The letter went on to particularise the claim “without prejudice to any legal proceedings”. It also sought disclosure of documents in the following terms:

“At this stage of the enquiries we would expect the following documents to be in existence. Please send us copies:

1.

The personal file of our client. We refer you to the Data Protection Act 1998.

2.

Personnel files of the alleged abuser (S), Mr Wilkinson, Mr Morgan, and any other members of staff who were mentioned in the investigation report.

3.

Day books throughout the period in question.

4.

Punishment books throughout the period in question.

5.

Medical Records throughout the period in question.

6.

Any written complaints concerning the professional ability, competence, conduct or treatment methods of any servants or agents of yours at the home.

7.

The result of, or report into, or other documentary evidence arising from any enquiry or investigation into the home.

8.

Any Home Office Report or other enquiry into the home.

9.

Any Social Service or other reports/records upon the management practices prevalent at your home.

10.

Attendance registers.

11.

Absconding/Truanting/Absence Registers.

12.

Any other documents likely to be relevant to the issues between the parties.”

The reference to “the investigation report” followed an earlier reference in the letter to “a large scale investigation into Newton Aycliffe [which] was critical of the negligent and inappropriate management styles prevalent when our client was a resident”.

We have not seen all the subsequent correspondence but its nature can be gleaned from the following. On 16 April 2008, the Council’s solicitors responded to the letter of 17 December 2007. The letter included these passages:

“We do have your client’s personal records which we are preparing for disclosure and will send to you as soon as they have been redacted …

The files of Mr Wilkinson and Mr Morgan can only be disclosed with their permission or an Order of the Court. We do not have their permission for disclosure so that you will need to make application to the Court for an Order on the basis that such files will be provided to you in redacted form and that you will meet the costs of both the application and the preparation for disclosure.”

At that time the Council’s solicitors were asserting a limitation defence. They wrote again on 19 May 2008 stating that social care records should be available shortly; that there was no obligation to release documents which were not relevant to the claim; and that:

“We do not accept your arguments in relation to the personnel records. Whilst we note your reference to the Data Protection Act it is necessary for the Court to balance the needs of competing public interests of the individual’s human rights and the interests of justice in your client accessing potentially relevant material.”

It is plain from this correspondence that both parties were focussing upon the DPA.

The claim form was issued on 25 March 2011. It alleged assaults and systemic negligence. It named Mr Morgan and Mr Wilkinson as assailants and another member of staff, Mrs Waterman or Mrs Valkman, as being complicit. It also alleged an act of violence by Mr Morgan against another boy, to whom I shall refer as DD.

On 20 July 2011 District Judge Khan issued standard directions allocating the case to the multi-track and ordering that standard disclosure by list should take place by 5 September 2011 with inspection to be completed by 12 September 2011.

The claimant’s list of documents dated 30 August 2011 included references to documents which had been disclosed by the Council including “copy Newton Aycliffe Home records”. The Council’s list of documents dated 15 September 2011 included detailed references to “Aycliffe Special Unit File 1 relating to the claimant” and “Aycliffe Special Unit File 2 relating to the claimant”. No objection was made to inspection of these documents. However, objection was taken to inspection of the personnel files of Mr Morgan, Mr Wilkinson and Mrs Valkman on the grounds that they “cannot be disclosed without consent of the individuals or an Order of the Court”. In fact the Council’s list was defective in a number of ways. Some of the documents in respect of which no objection was taken had already been disclosed albeit in redacted form. They should have appeared in Part 2 of the list because of the redactions, because the Council has at all times sought to justify the redactions.

On 2 November 2011 the disclosure issues were argued before District Judge Fairclough. It is plain from the witness statements sworn by the respective solicitors that they were both approaching disclosure on the basis that the governing regime was the DPA. District Judge Fairclough made the following order:

“1.

By 4pm 16 December 2011 the defendant shall disclose to the claimant further copies of all documents already disclosed redacted solely in respect of the following:

Names and addresses of the claimant’s parents and siblings;

Names of other children resident at Aycliffe Young People’s Centre.

2.

By 4pm 16 December 2011 the defendant shall disclose to the claimant copies of all documents within its list of documents which have not already been disclosed to the claimant redacted solely in respect of the following:

Names and addresses of the claimant’s parents and siblings

Names of other children resident at Aycliffe Young People’s Centre.

3.

By 4pm 16 December 2011 the defendant shall disclose to the claimant further copies of the personnel records of Neil Morgan and Peter Wilkinson redacted solely in respect of the following:

Names and addresses of the claimant’s parents and siblings;

Names of other children resident at Aycliffe Young People’s Centre.

4.

By 4pm 16 December 2011 the defendant shall disclose to the claimant the personnel records of Sarah Valkman, Mr Armer and Mr Hart redacted save as to reference to matters complained of by the claimant.”

There is no transcript of the judgment of the District Judge but there is an agreed note which includes the following passages:

“The issue to be considered is the redaction of documents disclosed by the Defence and if any or all should be unredacted in certain situations. I believe that it is important to strike a balance between the interests of the parties to litigation and the protection of others. I am sensitive to the issue of personal data being revealed but also realise that the proper information should be made available to successfully pursue a claim. …

Counsel for the Defence … resists the application to supply unredacted documents. She puts forward the argument that this is not necessary as contemporaneous evidence already exists. However, I also realise that Mr Garsden [the claimant’s solicitor] cannot pursue the claim without witnesses and this may put the claimant at a disadvantage. I recognise that this creates a real tension. I am persuaded by [the Council’s] argument that unredaction of records and documents would upset former residents. I feel it appropriate therefore to direct that the documents should be unredacted only in respect of those persons other than residents, for example, staff members and other agents. They will not be stigmatised in the same way. I note that in criminal proceedings there is a different approach and documents need to be unredacted. My view is that I should protect those in the system and anyone else may be identified. However, I realise that I may need to review my decision.”

He gave both parties permission to appeal.

On 3 February 2012 the appeal was heard by His Honour Judge Armitage QC. He reserved his judgment which was handed down on 12 March 2012. It gave rise to an order sealed on 23 March 2012 by which the claimant’s appeal was allowed and it was ordered that paragraphs 1, 2, 3 and 4 of the Order of District Judge Fairclough

“shall be varied by substituting ‘unredacted’ for ‘redacted’ wherever it appears and by deleting all words after ‘unredacted’ in each instance.”

In other words, Judge Armitage ordered the disclosure of all the disputed documents in unredacted form.

In his judgment, Judge Armitage observed that there was no doubt that the primary purpose of the appeal was to secure access to the names and possibly addresses of potential witnesses amongst others who had been resident at Newton Aycliffe at the material time. He added:

“To that extent it is a ‘train of enquiry’ application.”

He later referred to “the tension arising between the requirements of the [DPA], which is of general application, and the Civil Procedure Rules, which provide a code for the conduct of civil litigation”. Of the note of the judgment of the District Judge he said that it

“does not address the type of analysis by direct reference to the Act and CPR. However, in my judgment, it is clear from the self-directions applied by the judge that he had in mind the balance to be struck between the interests of the claimant and those of third parties other than the defendant’s own employees.”

His conclusions are contained in paragraphs 41 -46 of his judgment, the material parts of which are as follows:

“41.

My conclusion, on the authorities cited in this appeal, is that the proper approach is:

(i)

to concentrate on the application of the Civil Procedure Rules, which are specific to the task in hand, and which require disclosure of relevant documents. In the present case there is no doubt/issue that the documents are relevant and thus disclosable and liable to be inspected.

(ii)

to consider whether the applying party needs the redacted data for a section 35 (2a) and/or (b) purpose. In the present case the claim is supported by adequate evidence without the redacted material, but that material may lead to further evidence supporting and/or undermining either sides case and thus aid fair disposal of the claim.

(iii)

where the documents contain information which, by references to third parties, give rise to a relevant train of enquiry supporting the receiving party’s case or undermining the possessor’s case, to take into account that third party’s rights under the [DPA] are or may be engaged (depending on the precise data held in relation to the third party and the form of it – the latter for the purpose of deciding whether the [DPA] applies to it at all) and the legislature’s preference for protecting third party data.

(iv)

to take into account also that even if rights under the [DPA] are not engaged, the revelation of the information to the claimant and possibly to a wider audience may well be against the third party’s wishes and interests and have the potential to cause harm.

(v)

balance the prejudice to the applying party of being deprived of information against the prejudice to the third party as a result of the disclosure.

…

43.

I am satisfied that District Judge Fairclough did perform the balancing exercise required. In my judgment the conclusion he reached was wrong.

44.

My conclusion is that the necessity test is satisfied. The existence of evidence providing a prima facie case does not lead to the conclusion that corroborative evidence is not needed. The claimant needs to know the identity of those who may have relevant information and evidence and who may support his claim directly or indirectly or undermine a relevant aspect of the defendant’s case. He has a legitimate interest in being able to find out whether their evidence is of value.

45.

The risk for people not so far identified is that:

(a)

they will be contacted and thus reminded of a phase of their life which they may have chosen to forget and/or conceal.

(b)

such reminder may cause psychological/other disturbance to them.

(c)

the method/fact of contact may reveal to husbands/wives/partners/employers a fact not revealed or actively concealed from them.

(d)

even if not contacted, they may be mentioned at trial in circumstances such that they are identified with similar consequences to those identified in (a) –(c) above.

46.

Provided the information is used solely for the purpose of this litigation and that approaches to potential witnesses are handled sensitively and without avoidable revelation of their former involvement with the home and/or the claimant (which information they may have suppressed), no prejudice should occur beyond the potential initiation of a letter requesting co-operation. In the event that the potential witness is unwilling, then that should be an end of the matter. Steps can be taken at trial to avoid unnecessary identification of those who do not become witnesses.”

The present appeal to this Court is therefore a second appeal. Permission for it was granted by Sir Scott Baker on the basis that the case raises “an important point of principle and practice in historic child abuse and other litigation and a definitive decision by the Court of Appeal is required”.

It is unfortunate that this dispute about disclosure has been prolonged and distorted by references to the DPA. I do not doubt that a person in the position of the claimant is entitled – before, during or without regard to legal proceedings – to make an access request pursuant to section 7. I also understand that such a request prior to the commencement of proceedings may be attractive to prospective claimants and their solicitors. It is significantly less expensive than an application to the Court for disclosure before the commencement of proceedings pursuant to CPR31.16. Such an access may result in sufficient disclosure to satisfy the prospective claimant’s immediate needs. However, it has its limitations. For one thing, the duty of the data controller under section 7 is not expressed in terms of disclosure of documents but refers to communication of “information” in “an intelligible form”. Although this may be achieved by disclosure of copies of original documents, possibly redacted pursuant to section 7(5), its seems to me that it may also be achievable without going that far. Secondly, if the data subject is dissatisfied by the response of the data controller, his remedy is by way of proceedings pursuant to section 7 which would be time-consuming and expensive in any event. They would also engage the CPR at that stage: Johnson v Medical Defence Union [2005] 1 WLR 750; [2004] EWCH 2509 (Ch).

In the present case, the claimant’s solicitor’s letter of 17 December 2007 expressly referred to the DPA although its form and content were those typically found in a Pre-Action Protocol letter of claim in a personal injury claim, including the listing of documents of which disclosure was sought. The letter made no reference to the fee which would have been payable if the letter had been simply an access request under section 7 of the DPA. Moreover, it is clear that the long list of documents of which disclosure was sought extended well beyond an access request for information relating to the claimant as a data subject.

Proceedings having been issued on 25 March 2011 and District Judge Khan having given standard directions in the proceedings on 20 July 2011, a disclosure issue arose within the proceedings following the production of the Council’s list of documents. The dispute came within the ambit of a case management conference for which District Judge Khan had made provision in his Order. In the event, the hearing before District Judge Fairclough on 2 November 2011 was an adjourned listing of the case management conference. The parties’ solicitors filed witness statements addressing a number of issues including the disputed disclosure matters. Each of them referred to the DPA. Neither referred in terms to Part 31 of the CPR. The District Judge’s judgment referred to “the issue of personal data being revealed” and to the availability of “proper information”. It is impossible to escape the conclusion that, with the encouragement of the solicitors, he treated the DPA as the governing regime.

To approach the matter in that way was erroneous. The hearing took place within the context of a case management conference to which the CPR applied. The proceedings were in the nature of a common law action for damages, not a statutory application pursuant to the DPA. The case for the Council in this Court is that, even if the District Judge was diverted into the wrong regime, he reached the correct conclusion as a result of an equivalent balancing exercise.

The subsequent judgment of Judge Armitage began with the observation:

“The claimant had not made an application for his data (an ‘access request’) under the [DPA] before the commencement of these proceedings. The application before the District Judge was made and decided under the CPR as a case management decision in a civil claim. The District Judge was not concerned directly with what would have happened had such an access request been made and eventually brought before the court under the provisions of sections 7(9) and 15 of the Act.”

As an analysis of what should have happened, that is broadly correct although, as I have indicated, I do not think that it is how the proceedings before the District Judge were perceived at the time.

Judge Armitage then analysed the issue before him as being the right or duty to withhold inspection pursuant to CPR31.3(b) which he described as “the heart of this appeal”. He described CPR31.3(b) as:

“wide enough to include claims for legal professional privilege, public interest privilege/immunity and a statutory duty to protect data or to avoid a breach of a third party’s Article 8 human rights.”

The only difficulty with this description is the reference to data protection. In my judgment, it is misleading to refer to a duty to protect data as if it were a category of exemption from disclosure or inspection. The true position is that CPR31, read as a whole, enables and requires the court to excuse disclosure or inspection on public interest grounds. In a case such as the present one, it may be misleading to describe the issue as one of public interest immunity (a point to which I shall return). The requisite balancing exercise is between, on the one hand, a party’s right to a fair trial at common law and pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and, on the other hand, the rights of his opponent or a non-party to privacy or confidentiality which may most conveniently be protected through the lens of Article 8. It is a distraction to start with the DPA, as the Act itself acknowledges. Section 35 exempts a data controller from the non-disclosure provisions where disclosure is required in the context of litigation. In effect, it leaves it to the court to determine the issue by the application of the appropriate balancing exercise under the umbrella of the CPR, whereupon the court’s decision impacts upon the operation of disclosure under the DPA.

When I refer to “the appropriate balancing exercise”, I mean appropriate in the context of the particular litigation. This brings me back to public interest immunity. It will clearly arise in some contexts, the clearest example being civil litigation with national security implications: Al-Rawi v Security Service [2012] 1 AC 531; [2011] UKSC 34. However it is wrong to treat all cases in which a public authority seeks exemption from a disclosure or inspection obligation on public interest grounds as being cases of public interest immunity in the strict sense. Thus in care proceedings, the law has moved on from the approach taken in the later decades of the twentieth century to the point where, in Re R (Case: Disclosure: Nature of Proceedings) [2002] 1 FLR 775, Charles J was able to say (at page 777):

“… general statements that one sees in textbooks and hears that social work records are covered by public interest immunity, which is a widely stated class claim, should now be consigned to history.”

I do not propose to dwell on this history. It is discussed in the following judgment of Munby LJ which I have read in draft and with which I agree. The disputed documents in the present case are not social work records in the strict sense but they are not dissimilar in nature and, in my view, they should attract the same approach.

What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.

I return to the judgment of Judge Armitage and I concentrate on the passages which I set out at paragraph 14, above. I do not think that the judge should have been distracted by the DPA as if it imposed additional requirements. He ought to have confined himself to the CPR in the way that I have described. However, ultimately his approach addressed relevance and concluded with the balancing of “the prejudice to the applying party of being deprived of information against the prejudice to the third party as a result of the disclosure”. He applied a test of strict necessity, albeit (it seems) on the basis that the claimant had satisfied the test whereas, in truth, it had been for the Council to establish that it was strictly necessary not to disclose. In my judgment, and notwithstanding the DPA overlay and the questionable allocation of the burden of proof (which favoured the Council), his approach was substantially correct and his conclusion is unassailable. I think he was right to conclude that, if the District Judge was applying the CPR rather than the DPA (as to which, I disagree with Judge Armitage: see paragraph 20, above), he reached the wrong result.

It follows from what I have said that I would dismiss the Council’s appeal. In paragraph 46 of his judgment (set out in paragraph 17, above) Judge Armitage referred to steps which may have to be taken to protect non-parties’ interests at trial. Such issues should be resolved at the final case management conference. I would suggest that, at the present stage, this Court might assist by including in our Order a provision that the identities of non-parties be not disclosed beyond the parties and their legal advisors and that the information to be disclosed be used solely for the purpose of those proceedings until further order of the County Court.

I agree with the Vice President’s conclusion and with his reasoning. In particular I agree with his formulation of the relevant principles in paragraph 23 above.

The casual reader of the White Book could be forgiven for gaining the impression from paragraph 31.3.33 that public interest immunity as referred to in CPR 31.19(1) applies to local authority social work records. The authority referred to is Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36. Reference is also made in the White Book to D v National Society for the Prevention of Cruelty to Children [1978] AC 171. As the Vice President has pointed out, however, the law has moved on, as shown by what Charles J said in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755.

We have not had full argument on the point so this is not the occasion to come to any definitive view. Nonetheless an examination of the authorities, locating them within the context of radically changed practice in the Family Division, is illuminating.

The starting point is the decision of the Court of Appeal in In re D (Infants) [1970] 1 WLR 599. It arose out of wardship proceedings (then, of course, still allocated to the Chancery Division) in relation to a child in the care of the local authority – a state of affairs which the Children Act 1989 now precludes. On the mother’s application, Whitford J had ordered the local authority to produce the case records kept by it pursuant to the Boarding-Out of Children Regulations 1955. On the local authority’s appeal his decision was reversed. The Court of Appeal (Lord Denning MR, Harman and Karminski LJJ) held that the case records were privileged from disclosure. It was accepted that there might be exceptional circumstances in which the court might overrule the privilege.

What is interesting is what the case reveals of practice in children cases at the time; a practice utterly different from anything that would be thought acceptable today. Harman LJ, who had previously been a judge of the Chancery Division and therefore spoke with authority of practice in wardship cases, said “I have never heard of discovery of documents in such a case.” Karminski LJ, who had previously been a judge of the Probate, Divorce and Admiralty Division and therefore spoke with authority of practice in cases in that Division relating to children, said “I have no recollection of any such order ever having been made.”

The next case is D v National Society for the Prevention of Cruelty to Children [1978] AC 171. The issue in that case was whether, in proceedings against it for alleged negligence in investigating a complaint of child abuse that had been made to it, the NSPCC was entitled to claim immunity from discovery of any documents that might reveal the identity of the complainant. The House of Lords held that the documents were privileged, by analogy with the well-established privilege protecting the identity of police informers (see Marks v Beyfus (1890) 25 QBD 494). The case therefore proceeded on a narrow basis, though approving reference was made to In re D.

The next case is the decision of the Court of Appeal in Gaskin v Liverpool City Council [1980] 1 WLR 1549, where the plaintiff, who had been in care as a child, brought proceedings against the local authority for negligence in their care of him. His application for disclosure of the case notes and records of his period in care was refused by Boreham J and the Court of Appeal (Lord Denning MR, Megaw and Dunn LJJ) on the ground of privilege. Lord Denning MR said (page 1553) that In re D “should now be regarded as of general application: not only in wardship or custody proceedings: but also in actions such as the present – for personal injury.”

After further skirmishing in this country, Mr Gaskin took his case to Strasbourg: Gaskin v United Kingdom (1989) 12 EHRR 36, [1990] 1 FLR 167. The court held that the refusal to allow him access to his records involved a breach of his rights under Article 8, because there was no independent mechanism for determining whether or not access should be permitted where the consent of third party contributors could not be obtained.

In the meantime there had been another significant decision at Strasbourg in a child care case. In W v United Kingdom (1988) 10 EHRR 29, para 64, the court laid down the principle that unless “the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests”, there will be a breach of Article 8.

No doubt the proceedings in Strasbourg played some part in prompting the enactment of the Access to Personal Files Act 1987.

The next case is Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36. It marked a significant break with previous practice. Although recognising that public interest immunity attached to social work records, Butler-Sloss LJ, with whom Lloyd and Nicholls LJJ agreed, said (page 43) that the practice of giving automatic immunity from production of such records “needs to be reconsidered.” She continued:

“On the application of a party to the proceedings for disclosure of relevant documents the judge has a duty to weigh up competing public interests … It is for the court on the application to decide whether the public interest in protecting the social work records overrides the public interest that the party to the proceedings should obtain the information he or she is seeking in order to obtain legal redress.”

She added this important observation:

“For my part, I consider that the strict approach developed in 1970 and followed in subsequent decisions must be relaxed in the light of the current legislation and modern opinion about greater openness in society. The DHSS issued guide-lines on the rights of access of the subject of social work files who had been in care in a series of directives from 1983. The Access to Personal Files Act 1987, which gives rights to access to certain documents, is another pointer in the same direction. The law of evidence must move with the times. None of this invalidates the general principle of public interest immunity, but it will undoubtedly have an effect on the balancing operation to be conducted by the judge.”

That was in December 1989. A month earlier, in November 1989, Watkins LJ and Waite J in R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330 had had to consider the disclosure of local authority records in the context of care proceedings where allegations of sexual abuse were being made against a parent. They emphasised (page 336) the interest of the child

“as part and parcel of its general welfare, not only in having its own voice sympathetically heard and its own needs sensitively considered but also in ensuring that its parents are given every proper opportunity of having the evidence fairly tested and preparing themselves in advance to meet the grave charges against them.”

They went on:

“Local authorities therefore have a high duty in law, not only on grounds of general fairness but also in the direct interest of a child whose welfare they serve, to be open in the disclosure of all relevant material affecting that child in their possession or power (excluding documents protected on established grounds of public immunity) which may be of assistance to the natural parent or parents in rebutting charges against one or both of them of in any way ill-treating the child.”

Despite the references in both cases to public interest immunity, we are already in attitude and approach a long way indeed away from In re D and Gaskin.

In 1995 there was another very significant decision in Strasbourg. In McMichael v United Kingdom (1995) 20 EHRR 205 there had been care proceedings in Scotland in which social services and medical reports were given to the court, but not disclosed to the parents, though the contents were made known to them. The court held that there had been violations of both Article 6 and Article 8. Having commented on the special nature of care proceedings, the court said (para 80):

“Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair – adversarial – trial “means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party”. In the context of the present case, the lack of disclosure of such vital documents as social reports is capable of affecting the ability of participating parents not only to influence the outcome of the children’s hearing in question but also to assess their prospects of making an appeal to the Sheriff Court.”

Moreover, as subsequent authority in Strasbourg shows, Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings. In TP and KM v United Kingdom [2001] 2 FLR 549 (para 82) the court said:

“The positive obligation on the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by the parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.”

While these developments were taking place at Strasbourg, there were of course important developments taking place here. The Children Act 1989 was implemented with effect from October 1991 and the Human Rights Act 1998 with effect from October 2000.

The effect of all this on developments in the practice of the family courts in relation to disclosure of local authority records can be traced through three decisions: first, Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204, 208-210 (Cazalet J), and then two cases to which Ms Connolly took us, Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, 772-779 (Charles J) and Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, paras [98]-[105], [140]-[151] (Munby J). In the latter case I said (para [154]):

“The local authority should at an early stage of the proceedings make full and frank disclosure to the other parties of all key documents in its possession or available to it … Early provision should then be afforded for inspection of any of these documents. Any objection to the disclosure or inspection of any document should be notified to the parties at the earliest possible stage in the proceedings and raised with the court by the local authority without delay.”

We are a world away from 1970 or even 1989.

Now where all this leaves public interest immunity in relation to social work records is, at least in terms of abstract principle, an interesting and important question to which the answer is not immediately obvious. That said, and without, I emphasise, coming to any conclusion on a matter which requires more detailed argument than was necessary or appropriate in the present case, I have to say that I share Charles J’s scepticism as expressed in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, 777. I agree with his observation that:

“any case on public interest immunity that precedes R v Chief Constable of West Midlands Police ex parte Wiley; R v Chief Constable of Nottinghamshire Police ex parte Sunderland [1995] 1 AC 275 or post-dates it but does not include a careful consideration of that case and the developments in the law and practice relating to public interest immunity that followed should be regarded with caution and carefully reconsidered. For example, in my judgment, that applies to the decision of the Court of Appeal in Re M (A Minor: Disclosure of Material) [1990] 2 FLR 36.”

I do not doubt that some social work records will still be covered by public interest immunity. Documents recording the identity of informers are an obvious example: for a recent such case see Re J (A Child: Disclosure) [2012] EWCA Civ 1204. But I agree with Charles J when he said that:

“general statements that one sees in textbooks and hears that social work records are covered by public interest immunity, which is a widely stated class claim, should now be consigned to history.”

The reality now in the Family Division is that disputes about the ambit of disclosure, whether in relation to social work records or other types of document, are framed in terms of the need to identify, evaluate and weigh the various Convention rights that are in play in the particular case: typically Article 6 and Article 8 but also on occasions Articles 2, 3 and 10. Examples can be found both in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, and in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, to which Ms Connolly also took us. Recent examples of the same approach can be found in the decisions of the Court of Appeal in A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, where Articles 2 and 3 were engaged as well as Articles 6 and 8, and Re J (A Child: Disclosure) [2012] EWCA Civ 1204, another case where Article 3 was engaged.

Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 was a care case where there was a dispute as to whether one of the fathers involved in the proceedings should have access to certain documents, including psychiatric reports, relating to the mother, her husband and the children. I held that he should not. However, I emphasised (para 89) that:

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

So far as I am aware, this approach has never been challenged and has often been followed. Indeed, the passage I have just quoted has twice been approved by the Court of Appeal: Re B, R and C (Children) [2002] EWCA Civ 1825, para 29, and Re J (A Child: Disclosure) [2012] EWCA Civ 1204, paras 49, 50.

I might add that although there has been recent discussion in Family Division case law about the applicability of public interest immunity to police child protection records, I cannot recall any occasion during my nine years in the Division when any question of public interest immunity was ever raised before me in relation to local authority or other social work records.

In these circumstances I would respectfully suggest that the treatment of this important topic in the White Book is so succinct as to be inadvertently misleading.

I add two points. The first is that, in determining whether or not documents that are otherwise relevant should be withheld from disclosure in family proceedings, precisely the same principles seemingly operate and precisely the same Convention approach is applied in cases involving a claim to public interest immunity as in cases where disclosure is sought to be withheld on some other ground: see Re J (A Child: Disclosure) [2012] EWCA Civ 1204, paras 46-60. So it is not immediately obvious what advantage there is in first determining whether or not public interest immunity applies.

The second point is that, particularly in the light of the Convention jurisprudence, disclosure is never a simply binary question: yes or no. There may be circumstances, and it might be thought that the present is just such a case, where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised. Disclosure of third party personal data is permissible only if there are what the Strasbourg court in Z v Finland (1998) 25 EHRR 373, paragraph 103, referred to as “effective and adequate safeguards against abuse.” An example of an order imposing such safeguards can be found in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673, 699 (appeal dismissed A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045). I agree, therefore, with what the Vice President has suggested in paragraph 25 above.

I agree with both judgments.