Metropolitan Borough Council v JJ & Anor

In care proceedings, a children’s guardian has a statutory right under Children Act 1989 section 42 to examine and copy local-authority records falling within the section and relating to the child. The expression “relating to the child” has a broad meaning. It is not confined to documents whose primary subject is the child. Public-interest immunity does not prevent inspection where section 42 applies, although confidentiality and the limits on onward dissemination remain. Local authorities must co-operate with guardians and give the court open, frank and balanced evidence. Early appointment of a guardian is an important safeguard against defective social-work practice and misleading disclosure.

The application arose in care proceedings concerning a young child who had been removed from foster carers after the foster father’s arrest in a child-protection investigation. The local authority had failed to disclose material facts about the removal and medical examination to the family proceedings court and had subsequently resisted the guardian’s requests for records, including an independent investigation report.

The guardian applied in the High Court for inspection and copying of the records under Children Act 1989 section 42. The issues were whether the documents related to the child, whether confidentiality or public-interest immunity displaced the statutory right, and what duties the local authority owed to the guardian and the court.

1. Application allowed. The guardian was entitled to inspect and take copies of the independent report and all other documents in the local authority’s possession relating to the child which fell within Children Act 1989 section 42. The local authority was ordered to pay the guardian’s costs of the disclosure application, subject to detailed public-funding assessment.
2. Section 42 was to be given its literal and broad meaning. A document need not have the child as its main focus. The independent report had been commissioned in response to complaints about the handling of the child’s case and plainly related to him.
3. The reasoning in Re R (Care Proceedings: Disclosure) [2000] 3 FCR 721 applied. Section 42 implemented a policy of co-operation between welfare and child-protection agencies. Where records fell within the section, public-interest immunity did not arise so far as the guardian’s statutory inspection was concerned. Section 42(3) expressly operated regardless of an enactment or rule of law that would otherwise prevent admissibility.
4. Inspection by the guardian did not destroy confidentiality. The documents remained confidential to the proceedings, and the guardian had to exercise discretion in any later use or dissemination. Sensitive information irrelevant to the child should not be passed on.
5. Guardians and social workers have different but equally important roles. The guardian must scrutinise social-work assessments rigorously, but the relationship should be constructive rather than adversarial. A local authority must provide open, frank, balanced evidence, including positive as well as negative information about parents and family members. The court’s welfare jurisdiction is non-adversarial.
6. The delay in appointing the guardian was unacceptable. Early appointment and access to records are important safeguards against poor social-work practice and the withholding of relevant information from the court.

First-instance determination in the High Court (Family Division). The judgment records earlier directions by the family proceedings court and transfer to the county court, but no appeal from the disclosure decision.