View source for ICLR RC v CC (2014) EWHC 131 (COP), (2014) MHLO 7

''EVIDENCE — Disclosure — Court of Protection — Incapacitated adult — Birth mother seeking to re-establish contact  — Whether disclosure principles applicable in children cases applying — Test to be applied — Human Rights Act 1998, Sch 1, Pt I, arts 6, 8''
 
'''RC v CC and another'''

'''[2014] EWHC 131 (COP);  [2014] WLR (D)  43'''

Court of Protection:  Sir James Munby P:  30 January 2014

The jurisdiction to refuse disclosure of materials to the parties in children cases was clearly established and the same fundamental principles applied in cases relating to incapacitated adults in the Court of Protection. The test to be applied was that of “strict necessity” and the question was whether it was necessary, in the interests of the incapacitated person, for the information not to be disclosed.

Sir James Munby P, sitting in the Court of Protection, so stated in a reserved judgment handed down in open court when allowing in part an appeal by the birth mother, RC, against the refusal of Judge Cardinal, sitting as a judge of the High Court on 8 May 2013 [2013] EWHC 1424 (COP) to allow disclosure to her of certain documents which had been filed in connection with her application for contact with her daughter, CC. The grounds of appeal were, inter alia, that the judge had misdirected himself in considering whether it was necessary for the birth mother to see the social workers’ statements rather than whether it was in CC’s interests that the documents were not disclosed, and that the judge had given inadequate and unsustainable reasons to justify his conclusion.

'''SIR JAMES MUNBY P''' said that CC was a young adult who lacked capacity. She had been adopted as a very young child and her birth mother had issued an application in the Court of Protection seeking contact with her. The local authority in whose area CC was living had filed a report by a clinical psychologist and three social worker statements relating to her and the judge had concluded that although RC should be permitted to see a redacted version of the psychologist’s report she should not be permitted to see any of the three social worker statements.
It had been long recognised that the special nature of the jurisdiction in wardship (as more generally now in children cases) justified departure not merely from the principle of open justice but also from other aspects of ordinary civil procedure: see Official Solicitor to the Supreme Court v K [1965] AC 201, In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 and In re A (A Child) (Family Proceedings: Disclosure of Information) [2013] 2 AC 66. In re B (Disclosure to Other Parties) [2001] 2 FLR 1017 and Dunn v Durham County Council [2013] 1 WLR 2305 made it clear that the test was one of “strict necessity” and that even if a case for restrictions were made out, the restrictions had to go no further than was strictly necessary. Those authorities mainly related to children but the same principles applied in cases in the Court of Protection relating to adults. It was not necessary to look further than Scott v Scott [1913] AC 417 to see that the same fundamental principles underlaid both jurisdictions: see also In re E (Mental Health Patient) [1985] 1 WLR 245 and Enfield London Borough Council v SA, FA and KA [2009] COP LR Con Vol 362.

Having correctly identified the legal principles he had to apply and the approach he should adopt, the judge had identified the issue as whether the details of CC’s circumstances should be fully revealed to her birth mother many years after an adoption order had been made and when she had not seen CC since early childhood, and he had recognised that involved consideration of CC’s article 8 rights and RC’s article 6 rights. There was nothing objectionable in his reasoning and conclusions as to the redacted psychologist’s report. However, in relation to his conclusion that it was not necessary for RC to see the social workers’ statements, that was not the question. The question was whether it was necessary, in CC’s interests, that RC did not see the documents. The judge had made no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC. As it stood, the judgment provided inadequate justification for such a drastic restriction of what could be disclosed. In those circumstances the appeal would be allowed to the extent of setting aside those parts of the order which related to the three social worker statements and the matter returned to the judge to reconsider his decision and judgment.

'''Appearances:''' Adam Fullwood (instructed by Broudie Jackson and Canter) for RC; Malcolm Chisholm (instructed by Steel & Shamash) for CC, by her litigation friend the Official Solicitor; Jennifer Oscroft (instructed by Legal Department, X Local Authority) for the local authority.

'''Reported by:''' Jeanette Burn, Barrister.

© 2013. The Incorporated Council of Law Reporting for England and Wales.