In re W (Minors) (Social Workers: Disclosure)

Family Proceedings Rules 1991, rule 4.23 protects only documents held by the court and relating to family proceedings. Social workers’ notes, drafts and working papers which have not been filed remain outside the rule, although they are confidential and protected from general publication.

A local authority may share such material with the police consistently with its child-protection duties. A court considering disclosure of filed material must balance confidentiality and the welfare of children against the administration of justice, the investigation of serious crime and inter-agency co-operation. It should hesitate before withholding relevant and significant information from the police without good reason.

The mother admitted during a local authority assessment that she had shaken one of her children. The admission appeared both in social workers’ working papers and in an assessment report filed in care proceedings. The police sought the report, the working papers and permission to interview the social worker.

The district judge refused disclosure. On appeal, His Honour Judge Barry held that rule 4.23 of the Family Proceedings Rules 1991 covered the filed report and associated working papers. He nevertheless held that the social worker could convey the information orally, and refused permission to disclose the documents.

The mother appealed and the Chief Constable cross-appealed. The Court of Appeal considered the scope of rule 4.23, the status of documents outside that rule and the proper exercise of the discretion to permit disclosure of a filed document.

1. Disposition. The Court of Appeal unanimously dismissed the mother’s appeal and allowed the Chief Constable’s cross-appeal. Butler-Sloss LJ delivered the judgment, with which Judge and Mummery LJJ agreed. The police could obtain the social workers’ unfiled notes from the local authority without leave, and the court granted leave to disclose the filed assessment report.

2. Scope of rule 4.23. Rule 4.23 of the Family Proceedings Rules 1991 applies only to a document held by the court and relating to the proceedings. The assessment report satisfied those conditions. Notes, drafts and other working papers which had never been filed did not. Extending the rule to such material would rewrite its clear language. The distinction drawn in In re G (a Minor) (Social Worker: Disclosure) [1996] 1 WLR 1407 and In re D (Minors) (Wardship: Disclosure) [1994] 1 FLR 346 was applied.

3. Confidential local authority material. Section 12 of the Administration of Justice Act 1960 protects information relating to specified private family proceedings from publication. It does not extend the court’s control to social work documents which were neither filed nor used in the proceedings. Such documents are nevertheless confidential and protected from general publication by public interest immunity.

   Confidentiality did not prevent the local authority and police, each acting under statutory child-protection responsibilities, from exchanging relevant information. The statutory guidance entitled “Working Together” required close inter-agency co-operation. The exchanged material remained confidential as against the public. This conclusion did not address the distinct position of a guardian ad litem or court welfare officer.

4. Disclosure discretion. Disclosure under rule 4.23 required a balancing exercise. Relevant considerations included the children’s welfare, confidentiality and frankness in family proceedings, the administration of justice, the public interest in investigating and prosecuting serious crime, and co-operation among child-protection agencies. The guidelines in In re EC (Disclosure of Material) [1996] 2 FLR 725 applied before oral evidence as well as afterwards.

   The county court judge gave insufficient weight to the administration of justice, serious crime and inter-agency co-operation. The seriousness of a suspected offence was not a reason to withhold material, and a family judge should not exercise the charging discretion entrusted to the police and prosecuting authorities.

5. Application. The assessment report was relevant and its disclosure would not harm the children. The police would obtain materially related interview notes in any event. Family judges should hesitate before withholding relevant and significant information needed for a police investigation. Disclosure may be refused where the evidence is peripheral and the resulting harm outweighs its value, but potential criminal investigations should not be frustrated without good reason.

1. Court of Appeal: The mother’s appeal was dismissed and the Chief Constable’s cross-appeal was allowed. Leave was granted to disclose the filed assessment report to the police.

2. Leeds County Court: His Honour Judge Barry allowed the police appeal in part. He held that rule 4.23 protected the filed report and associated notes and working papers, but did not prevent the social worker from communicating the information orally. He refused leave to disclose the documents.

3. District Court: District Judge Giles refused the police access to the assessment report, preparatory documents and social work records, and restrained disclosure of the substance of the mother’s admission.