Oxfordshire County Council v M

Children Act care proceedings are in a special category and are not essentially adversarial. The court must investigate and determine the child’s welfare, which is paramount. Where a party obtains leave to obtain an expert report using case material or other court assistance, the court may require disclosure and may override legal professional privilege attaching to the report when this is necessary for an informed welfare decision. The ruling concerns party-obtained expert reports and does not remove privilege from lawyer-client communications that cannot affect the court’s judgment.

Oxfordshire County Council brought care proceedings concerning two young girls under the Children Act 1989. At a directions hearing, the mother and the father of one child sought to remove a requirement that expert reports obtained using disclosed case material be filed and served. They also sought permission to consult further experts without being obliged to disclose unfavourable reports.

The county court followed the approach in Essex County Council v R [1993] 2 FLR 826 rather than Barking and Dagenham London Borough Council v O and Another [1993] 2 FLR 651. The appeals concerned whether legal professional privilege applied to such reports and whether the court had power to require their disclosure.

The appeals were dismissed. The orders requiring disclosure of expert reports obtained with the court’s leave were upheld.

1. Nature of the proceedings. Sir Stephen Brown P held that care proceedings under the Children Act 1989 are not essentially adversarial. The court has an investigative duty and must take the necessary steps to reach a result promoting the child’s welfare. This placed the proceedings in a special category distinct from ordinary civil litigation.
2. Legal professional privilege. The court had power, in the circumstances, to override legal professional privilege attaching to party-obtained expert reports. Relevant information had to be available so that the court could make an informed welfare decision. The court preferred the approach in Essex County Council v R [1993] 2 FLR 826 and rejected the contrary approach in Barking and Dagenham London Borough Council v O and Another [1993] 2 FLR 651. The reasoning in Re A (Minors: Disclosure of Material) [1991] 2 FLR 473, although concerned with wardship, supported the conclusion that welfare-focused investigative powers continued under the 1989 Act.
3. Steyn LJ’s qualification. Steyn LJ agreed with the result. He reasoned that the paramountcy principle in section 1(1) of the Children Act 1989 outweighed the general privilege attaching to expert reports. He restricted the ruling to such reports and preserved privilege for lawyer-client advice which could not affect the court’s judgment. He also considered that an implied power to impose conditions under subordinate procedural rules could not itself destroy privilege; the overriding power had to derive from primary legislation.
4. Kennedy LJ’s alternative reasoning. Kennedy LJ agreed that the order was valid. Where court assistance was required to obtain a report, the court could make disclosure a condition of granting leave. The earlier order had also been made by consent. The final order was that both appeals be dismissed.

• Oxford County Court — At a directions hearing on 11 October 1993, His Honour Judge Harold Wilson refused to remove the disclosure requirement and made permission to consult further experts conditional on filing and serving their reports.
• Court of Appeal — Appeals by the mother and the father of T were dismissed. The county court’s orders were upheld: [1993] EWCA Civ 31.