RC v CC

When a person has been adopted as a result of an order of the Court he/she begins a new life- there is a new family and old legal relationships are severed. The birth parents no longer have parental responsibility for the child. When that child has reached the age of 18 however he or she may choose to look up his/her birth roots, to see a parent perhaps or make investigations. Copy documents can often be seen from the court adoption file. There is a natural curiosity which the adopted child may well wish to be satisfied. The choice however is that of the child, not the birth family. Some birth parents may seek to trawl for their adopted child through Facebook and other social media, but much depends on the response of the child. There is no way through the courts a birth parent can ordinarily ensure contact with an adult who was adopted as a child.

If the adopted person lacks the mental capacity to do so then it is inevitably so much the harder for him or her to investigate his/her background and birth family. In the case of CC, whose case is before me, it is doubtful she would have the capacity ever to do so. She was separated from her Mother when very young and adopted when about 6-18 months of age [I do not have the precise date]. She was born on 13^th January 1993 and is now therefore aged 20. She has partial lissencephaply, cerebral palsy and a weakness on the left side of her body. She has epilepsy and is learning disabled. Such evidence as I have that can be disclosed at this stage reveals she has some difficulty in understanding or weighing up the possible benefits or disadvantages of seeing her birth Mother. Certainly she requires significant support and prompting regarding her everyday skills.

The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2^nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible.

The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC’s incapacity that enables an application to be made.

The application is nonetheless properly brought and RC was granted permission to bring her application on 30^th July 2012 by District Judge Jackson sitting at the Court of Protection in London. The matter was then transferred to Birmingham for determination. The fact that permission to bring the application was granted of course says nothing about the prospects of success in due course.

RC at present has no idea where CC lives, nor even her current surname. Accordingly the Local Authority responsible for providing services to her as a disabled adult is anonymised and known as X Local Authority.

On 11^th January 2013 His Honour Judge Plunkett declared that there was reason to believe that CC lacked capacity to make decisions concerning contact. The Judge also ordered X Local Authority to file and serve a report by its clinical psychologist setting out (a) the nature and extent of CC’s disabilities and (b) an assessment of CC’s capacity to litigate and to make decisions about contact (direct and indirect) with the Applicant. The report was to be served by 22^nd February 2013. The Official Solicitor raised no objection to this order.

By letter dated 27^th February 2013 [B22-23] the Official Solicitor’s solicitor wrote to the Applicant’s solicitor stating that whilst a conference with counsel was still due to take place the position in the interim was that the Official Solicitor supported the course proposed by the local authority – that there should be no disclosure of the psychologist’s report or the witness statement by the social worker.

In his position statement dated 6^th March 2013 the Official Solicitor confirmed his position as follows:

“…even if CC has no objection or no strong objection to information being disclosed, the Official Solicitor as CC’s litigation friend is anxious to ensure that her entitlement to privacy and confidentiality are preserved as far as possible in her best interests, and that disclosure is limited to what is absolutely necessary for the proper determination of the case.

…

permission is sought by the Official Solicitor to continue to withhold the social worker’s statement and the psychologist’s report from the Applicant…”

The Official Solicitor went on to indicate that he considers that CC’s views about disclosing sensitive and confidential information have been ascertained.

X Local Authority’s position has changed somewhat in that in the hearing before me it took a “neutral” position on the issue of disclosure; that said its justification for so doing was that objections taken were better taken by CC’s Litigation Friend, the Official Solicitor. It has attended through Counsel Ms Oscroft and I am grateful to her for the information she has imparted to me.

In addition, HHJ Plunkett also ordered that CC’s social worker file a statement setting out an account of the contact that has taken place between [CC] and the Applicant, and the views of [CC’s] carers as to the impact upon [CC] and her carers of contact that has already taken place, and the views of [CC’s] carer or carers as to contact (whether direct or indirect) between CC and the Applicant in the future.

There are, in fact, three statements by the key social worker in this case though one is inaccurately described as a position statement. Objection is taken by the Official Solicitor to the disclosure of all three. He argues through Mr Chisholm that the statements properly disclose [as does the psychological report] a significant amount of confidential information.

The Official Solicitor has not yet visited CC as it is thought the application has caused her significant strain so her exact views have not been directly ascertained by him directly.

The Official Solicitor now seeks to argue that the psychological report should be disclosed in a redacted firm [removing all possible references to the address of CC and the area where she lives, plus all details of the immediate family where she resides]. All the Applicant RC knows is that she is with her adoptive Father and his new Wife and family if any. The Official Solicitor further argues that the social worker’s evidence should not be disclosed at all. The matter can still be dealt with by Mr Fullwood, the Mother’s counsel, by revealing such evidence to him and injuncting him not to discuss such evidence with Mother but permitting him and not Mother to be in court when the social worker gives her evidence; so her evidence is tested but not revealed to Mother. Unsurprisingly Mr Fullwood inter alia argues that this will not mean that there will be a fair trial.

I have before me no formal application for disclosure. Likewise there is no formal application by the Official Solicitor to exempt the social work statements from disclosure and to redact the psychological report [which has now been served in a redacted form] nor is there an application by RC to enforce disclosure. I shall deem all applications for and against disclosure as properly made and make orders accordingly- a course with which all parties agree.

What is the law as to disclosure? It is set out helpfully by both Mr Fullwood and Mr Chisholm and I set it down as Mr Chisholm presents it:

Mr Fullwood summarises his case thus: the social work statements [all three] and the psychological report should be disclosed in their entirety; disclosure should be refused only where refusal is strictly necessary; such a refusal is not strictly necessary in this case; the Official Solicitor should set out clearly what his view is of the appropriate test as to disclosure; and the redacted documents are not enough to meet the requirement that the Applicant has a fair trial nor is necessary in weighing up either the best interests of CC or in balancing the Article 6 and Article 8 rights of the parties.

I shall look at the points raised in support of his case by Mr Fullwood and evaluate them.

Mr Fullwood urged on me the view that Parliament intended a strong presumption in favour of disclosure by the 2005 Act and the Court of Protection Rules 2007. Such disclosure was principally only to be refused where it was strictly necessary to do so. Rule 3(3) of the 2007 is plain:

The parties would not be on an equal footing were information not disclosed to RC. Moreover Rule 16 is plain, he said:

“Unless the court orders otherwise, a party to proceedings may inspect or obtain from the records of the court a copy of –

(a)

any document filed by a party to the proceedings; or

(b)

any communication in the proceedings between the court and –

(i)

a party to the proceedings; or

(ii)

another person.”

The presumption is in favour of disclosure unless there is good reason to the contrary- a view with which it seems to me Mr Chisholm did not disagree. I entirely agree that in principle cases should proceed on the basis of disclosure but any presumption in favour of such disclosure must be tempered by the court’s paramount duty to address the best interests of CC and the need to weigh up the Article 6 and 8 rights engaged in answering the question as to what must be disclosed.

Mr Fullwood referred me to the cases set out in his skeleton. He argued thus: In order to justify not following the general rule, the court must be satisfied that ‘real harm’ to P [here C] would result from such disclosure. This assertion is supported by the decision of the Court of Appeal in Re E (Mental Health Patients) [1985] 1 WLR 245 in which at [616F-H] Stephenson LJ said:

“… There may come in to his [the Official Solicitor’s] possession in connection with litigation, when he is acting as next friend (or guardian ad litem), confidential reports which a parent has no absolute right to see and which should not be inspected by anyone but the court itself in the performance of its statutory duty to consider the benefit of a patient or the welfare of an infant (see Official Solicitor v K [1963] 3 All ER 191, [1965] AC 201). It must be most important to preserve the confidence of those who give information, often in writing, to the Official Solicitor which they might not give if they feared it might not be kept secret. But the cases in which the court should exercise its discretion to withhold disclosure of a confidential report or other confidential documents from a party or parent must be rare, and where the court is fully satisfied judicially that real harm to the patient must ensue from disclosure see what Lord Evershed said in Official Solicitor v K [1963] 3 All ER 191, at 197, [1965] AC 201 at 219.”

It was he argued a question for me to inspect the relevant documents and then unless there were really harmful [to use the words of the Court of Appeal] to CC to direct disclosure to RC. The occasions when non disclosure should be ordered were rare, he suggested, and I must apply that real harm test. It is a very high threshold he said. That principle applied all the more in a case where there are pending proceedings unlike as in Re E. Moreover he suggested that there is no evidence that disclosure of the social worker’s statement or the psychologist’s report would give rise to any or any real or otherwise unreasonable risk of harm to CC and in his skeleton adds If this application was being determined by the family court it is likely that an order for disclosure would be made due to the duty to give full and frank disclosure to all parties. There should be no difference between the disclosure rules in the family court and the Court of Protection when the aim of protection is the same in both.

I do not consider that just because a matter might be disclosable in a family case it follows that it is disclosable here. In any event there are cases where certain evidence is not disclosed in family cases- interveners are not shown all the evidence in a care application; in an adoption application the names and addresses of the adopters are normally withheld from the birth parents. A parent’s address and full circumstances may be kept confidential as is a foster placement in most instances. Information revealing addresses is appropriately redacted. Moreover in a family dispute by contrast the information about family life is often the very information that all parties need to see in addressing the issues at stake. It is the domestic circumstances of a party that give rise to an argument for or against residence or contact. Here the issue is different- is it in CC’s interest to recommence a family relationship with a Mother from whom the family relationship has been legally severed? It is not about the quality of CC’s life with her adoptive Father. Furthermore Re E was of course concluded prior to the enactment of the Human Rights Act 1998 and its application of the European Convention to English law.

Mr Fullwood referred me too to the judgment in Enfield London Borough Council v SA, FA and KA [2010] EWHC 196 (Admin) at [58] where Mr Justice McFarlane [as he then was] said:

“… For the future in such cases in the Court of Protection it would seem to be justified for the court to make an order for ‘specific disclosure’ under COPR 2007, r 133(3) requiring all parties to give ‘full and frank disclosure’ of all relevant material…”

Mr Fullwood added that the fact that the Enfield case was concerned with disclosure in the context of a fact-finding hearing to determine whether allegations of abusive parenting were established does not undermine the basis upon which the court approached the issue of disclosure. The case concerned the disclosure of an ABE interview. Mr Fullwood made the point that in Enfield the Local Authority was not relying on the material not to be disclosed; here the Local Authority does rely on the social work evidence and the psychological report- so the case for disclosure is all the more compelling. There would he said be simply no equality of arms were the material not disclosed. He conceded there might be reason to redact an address- no more. The Official Solicitor must establish necessity were the remainder of the information withheld.

It seems to me that the fact that the Enfield case concerns fact finding does not assist Mr Fullwood. Plainly there are considerable parallels between a case involving child abuse in care proceedings and a case involving alleged abuse of a protected party in the Court of Protection. But here the issue is about confidentiality and whether it would be respected in a case as to possible contact- it is not a case involving the alleged abuse of a party. Should the details of CC’s circumstances be fully revealed to her birth mother many years after as adoption order and when she has not seen CC since early childhood? The court is again driven to balancing article 8 and 6 rights and to looking at the best interests of CC above all else. I do not find that the words of McFarlane J [as he then was] drive me to conclude that there must be disclosure.

Mr Fullwood took me next to Durham County Council v Dunn [2012] EWCA Civ 1654where at [23] Lord Justice Maurice Kay said:

“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 am left with the strictly necessary test again yet after the enactment of the 1998 Act this time. Mr Fullwood argued on the basis of the decision here that the balancing exercise taking into account the matters I have outlined comes down in favour of disclosure. He said this:

It is worth noting however that the Official Solicitor’s position is not that nothing should be disclosed but that only the redacted psychological report should be. That gives a detailed picture of CC’s intellectual abilities, sets out up to date psychometric tests and their results, and draws careful conclusions about CC’s wishes and feelings as to contact. If the whole of the psychological report were disclosed then it would reveal the whereabouts of CC and the psychological services with which she is engaging. In other words I do not consider anything in that report in full assists RC any further but that it potentially invades CC’s present private life. RC can of course see the redacted psychological report. A more important question however is whether she should have access to the social work evidence:

I have looked with care at the three documents filed by the social worker. The first, the position statement, speaks of CC’s personal circumstances and reveals a deal of private information. The second does so all the more: it gives a very detailed breakdown of the social worker’s relationship and work with CC and reveals much of her family circumstances, and the work done with her as an incapacitous client; the third is short but does not take the matter any further save that again it describes work with CC.

I do not consider that RC needs to see the social work evidence to take her application further; moreover as well as it being an invasion of an adult’s right to respect for her privacy it also reveals much that could lead to her being traced. Whilst I have no evidence that RC would act improperly in abusing such information [say in an attempt to trace her] nonetheless it takes her case no further so long as her counsel can as needs be test the evidence.

Given what I have read of CC I do not at this stage take the view that CC should or could take part in the hearing before me. I am anxious not to destabilise her in any way. If I were to feel it necessary to see her I would only do so if she wished to see me and understood that I would repeat what she told me to the parties as to her views. I have done that in certain Court of Protection case- but I do not deem it necessary or appropriate here given the intellectual burden with which CC struggles.

I do not take the view at this stage that it is necessary for the unredacted psychological report nor the social worker’s evidence at all to be disclosed. But, as in public interest immunity cases, I shall keep the matter under review and invite further submission on that point as the need arises.

But I must consider with care Mr Fullwood’s carefully argued points as to disclosure being made unless non disclosure is strictly necessary etc:

Is there an article 8 argument in favour of disclosure? It cannot be said that RC’s right to respect for family life is being invaded. There is the argument that family life between birth Mother and daughter was severed many years ago. Adulthood does not restore that legal relationship. RC remains the biological Mother of CC but that is all. Now Mr Fullwood drew my attention to the case of Lebbink v The Netherlands [2004] 2 FLR 463 et seq. In that case a decision that there was no family life between a Father and daughter born out of wedlock was a breach of Article 8. The Court said inter alia that the question of the existence of family life was essentially a question of fact. If the relationship was not a potential one, relevant factors included the demonstrable interest in and commitment by the father to the child. But the court did not agree that mere biological kinship without further legal or factual elements should be sufficient to attract the protection of Article 8. Here it is plain that there is not a close personal relationship with CC. RC does not know her. Even the contact by correspondence ended four years ago. The fact of the correspondence cannot be said to have reintroduced some sort of family life for the purposes of Article 8. By contrast CC has a right to respect for family life; to her family life is with her adoptive Father and those she knows now as ‘family’. Although the point was not argued before me CC also has a right to respect for her private life, to live outside her biological family. I remind myself of the case of K v LBX [2012] EWCA (Civ) 79. In that case the Court of Appeal observed that in deciding residence [admittedly a very different type of dispute] the right approach under the 2005 Act was to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights or if that violation is, nonetheless, necessary and proportionate. In that case Black LJ pointed out that:

“Giving priority to family life under Article 8 by way of a starting point or assumption risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. There is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world, may not always be entirely compatible with the existing family life and particularly not with family life in the sense of continuing to live within the existing family home.” Whilst that case concerned whether or not a party should live with his biological family the point is clear- here CC has a right to respect for her private life too- her Article 8 rights are not confined to a relationship with her biological Mother but include a right to respect for her privacy and to develop an adult life of her own.

My conclusion therefore is that the Article 8 arguments point the court firmly in the direction of non disclosure of the items Mr Fullwood seeks.

Are the Article 6 rights of RC engaged? Of course she has a right to a fair trial, of her application for contact with CC. I do not think the duty to promote equality of arms necessitates her to seeing these documents personally. She has access to the redacted psychological report and that evidence can be challenged as needs be. The social work evidence can be challenged in the manner I set out below. But she is not entitled to examine the private life of this vulnerable young woman; I am satisfied that it would be disturbing for CC for her rights to be invaded- her family is under strain. I do not consider it right for her to have to be told that private information had been divulged to a party whom in reality she does not know. It is right for the Official Solicitor in my judgment to seek to avoid any distress the knowledge of disclosure might cause CC.

Accordingly it is right that RC sees the redacted psychological report alone. It is right that her counsel only sees the social work evidence but is under direction from me not to disclose it or discuss it with his client- so at least the social worker’s evidence can be properly tested. I take the view that Mr Chisholm is right- by limiting disclosure in this way I am denying only that which it is strictly necessary to deny. I do not consider that the social work evidence could in any feasible way be redacted.

Since handing down this judgment in draft, counsel have referred me to Re J (A Child: Disclosure) [2012] EWCA Civ 1204 and to the appeal from that decision, namely In the matter of A (A Child) [2012] UKSC 60. I have read both judgments with care and I am satisfied that they do not alter my decision in this case. In conclusion then the Court should approach the matter this way:

I express my thanks to counsel for their very helpful skeletons. I invite Mr Chisholm as the successful advocate to draft an appropriate order and to consider future directions with the other advocates involved.