C (A Child)

Documents filed in private family proceedings are confidential, and disclosure to treating clinicians requires active and careful consideration by the court. A party has no general entitlement to send all significant documents to professionals and cannot transfer the court’s disclosure responsibility to them. Under Family Proceedings Rules 1991, rule 10.20A, the table-based permission to communicate information to a health-care professional is directed to enabling a child to obtain health care or counselling; it does not ordinarily cover disputed witness statements sent to clinicians already providing treatment. An appeal against the discretionary decision requires more than showing that another view was possible. The decision must fall outside the band of reasonable views. A contrary court direction can also prevent disclosure otherwise permitted by the rule.

The father sought permission to appeal against an order made by Her Honour Judge Finnerty in the High Court, Family Division, York District Registry, on 18 July 2008. The underlying proceedings concerned his relationship with his son, R, who was approaching adulthood and receiving psychiatric treatment.

The judge permitted disclosure of transcripts of earlier judgments to R’s treating professionals, but refused permission to disclose the father’s disputed witness statements. The father argued that the professionals should decide whether the statements might assist R’s treatment and questioned whether rule 10.20A required permission. The central issues were whether the judge’s exercise of discretion was outside the range of reasonable decisions and whether the rule independently authorised the proposed communication.

Lord Justice Wilson refused the father’s application for permission to appeal. He also permitted the father to disclose a transcript of the Court of Appeal’s judgment to Dr Evans and Dr Ashley.

1. Appellate threshold. The father had to show more than that the Court of Appeal might have taken a different view. He had to establish that the judge’s disposal fell outside the band of reasonable views available in the exercise of her discretion. That threshold was not met. Wilson LJ considered that he would himself have reached the same conclusion.
2. Confidentiality and judicial assessment. Documents filed in private proceedings under the Children Act 1989 are subject to confidentiality. The family court must actively and carefully consider whether there are grounds for lifting that confidentiality. General disclosure of significant documents to clinicians would abdicate that duty. The witness statements were partial, contained criticisms of the mother, and included allegations that had not been judicially determined. Disclosure might be misunderstood as judicial endorsement.
3. The judge was entitled, and required, to form a preliminary view about whether the statements might usefully assist those treating R. In the circumstances, including R’s close relationship with his mother and his antipathy towards his father, the judge was entitled to conclude that disclosure to R might reinforce his antagonism and inflame his anger.
4. Rule 10.20A. Under the Family Proceedings Rules 1991, rule 10.20A(3), the table permits a party to communicate information relating to proceedings to a health-care professional for the purpose of enabling the child to obtain health care or counselling. That purpose did not extend to sending the statements to professionals already treating R in order to assist his existing treatment.
5. In any event, the permission in the table was subject to a contrary direction of the court under rule 10.20A(2)(b). Judge Finnerty’s refusal to authorise disclosure operated as such a direction. Wilson LJ further observed that R’s reaching adulthood during the appeal would not itself prevent the court from ruling on the order that should have been made while he was a minor.

• Court of Appeal (Civil Division): On 2 September 2008, Lord Justice Wilson refused permission to appeal. The father was permitted to disclose a transcript of the judgment to Dr Evans and Dr Ashley.
• High Court, Family Division, York District Registry: On 18 July 2008, Her Honour Judge Finnerty permitted disclosure of transcripts of earlier judgments to specified medical professionals, but refused disclosure of the father’s witness statements.