B R & C (Children), Re

Parties to public law proceedings under the Children Act 1989 owe the court a duty of full and frank disclosure. Fair trial ordinarily requires relevant evidence to be available to every party so that it can be considered and, where necessary, rebutted.

A restriction is exceptional. The person seeking it bears a heavy burden of identifying the documents precisely and showing that non-disclosure is strictly necessary. Any restriction must extend no further than the situation imperatively demands. A party who has neither complied with nor appealed an existing disclosure order must explain the default and seek relief from that order; another party need not establish the court’s entitlement to enforce it.

In contested public law proceedings concerning four children, the Pontypridd County Court ordered the mother and the children’s fathers to disclose their criminal and medical records. The mother did not disclose her medical records and did not appeal the order.

On reconsideration, the judge directed that the mother’s medical records should be disclosed only to the instructed psychologist and family centre. Those experts could not disclose the records to the other parties without a further order. The guardian ad litem and one father appealed. The local authority and the other fathers supported the appeal.

The central issues were whether the court had power to require disclosure and whether the restriction to expert access was compatible with the general duty of disclosure, fair trial and the mother’s privacy rights under article 8 of the European Convention on Human Rights.

1. The appeals were allowed and the order restricting disclosure to the experts was set aside. Thorpe LJ delivered the leading judgment. The President agreed wholeheartedly and also allowed the appeals.

2. The mother remained subject to the unappealed disclosure order. She had failed to comply and was in contempt. The burden therefore rested on her to explain the default and seek the court’s indulgence, including any appropriate reduction of the existing obligation. It was wrong to require another party to prove an entitlement to disclosure afresh.

3. Parties to public law proceedings under the Children Act 1989 owe a general duty of full and frank disclosure. The court’s protective and quasi-inquisitorial function gives it wide powers to bring potentially relevant material into the proceedings. The normal requirements of a fair trial demand disclosure to the parties so that evidence can be considered and, if necessary, rebutted.

4. Disclosure may be restricted only exceptionally. The person seeking non-disclosure must identify with precision the documents or classes concerned and demonstrate a compelling case. The governing standard is strict necessity. Any restriction must go no further than imperatively required. Privacy rights under article 8 of the European Convention on Human Rights form part of that assessment but do not displace the general rule.

5. The expert-only arrangement would have impaired the proper conduct of the trial. It prevented the experts from reporting freely and curtailed effective examination and cross-examination. No adequate basis had been shown for such a broad restriction.

6. The disputed documents were to be disclosed immediately to the lawyers, the named social worker, the guardian ad litem and the experts. Disclosure to the lay parties was stayed briefly until the first day of trial. The mother could then identify particular documents and ask the trial judge to withhold them.

7. The court also gave procedural guidance. Parties to an urgent appeal should collaborate over representation, applications, the core bundle and the authorities. Legal advisers advancing an unusual argument must research and present the governing law and procedure accurately. Unnecessary duplication wastes public resources and may delay decisions affecting children, contrary to the welfare consideration recognised by section 1(2) of the Children Act 1989.

1. Court of Appeal (Civil Division): The guardian ad litem’s and father’s appeals were allowed in [2002] EWCA Civ 1825. The restrictive order was set aside. Immediate professional disclosure was directed, subject to a brief stay concerning disclosure to the lay parties.

2. Pontypridd County Court: On 7 October 2002, His Honour Judge Woodward ordered that the mother’s medical and psychiatric records be disclosed to the instructed psychologist and family centre, but not to the other parties without a further order.

3. Pontypridd County Court: On 5 July 2002, His Honour Judge Woodward ordered the mother and the three fathers to disclose their criminal and medical records, including psychiatric records. The mother did not comply and did not appeal.