Contact – practice and procedure – other
A birth mother (‘RC’) sought the reintroduction of indirect contact with her adopted 20 year-old daughter (‘CC’) whom she had not seen for over 18 years. The adoptive mother had ceased sending letters, drawing, photographs and cards after separating from the adoptive father, with whom the daughter now resided. Ordinarily the decision whether to resume contact with one’s birth parents is that of the adopted individual, not of the birth family. But she lacked the mental capacity to make it.
At issue was whether an unredacted psychological report and social worker statements should be disclosed to the birth mother. A redacted version of the report detailed CC’s intellectual abilities, psychometric results, and conclusions about CC’s wishes and feelings as to contact. The unredacted version would reveal her whereabouts and the psychological services with which she was engaging. The social work evidence was unredactable and spoke of CC’s personal and family circumstances and the social work that had been carried out with her.
The Court of Protection Rules 2007 132-139 relate to disclosure but do not contain any test or threshold for denying disclosure, rule 138 merely providing:
A party who wishes to claim that he has a right or duty to withhold inspection of a document, or part of a document, must state in writing:
- that he has such a right or duty; and
- the grounds on which he claims that right or duty.
HHJ Cardinal accepted that "in principle cases should proceed on the basis of disclosure but any presumption in favour of such disclosure must be tempered by the court’s paramount duty to address the best interests of CC and the need to weigh up the Article 6 and 8 rights engaged in answering the question as to what must be disclosed" (paragraph 22). Rejecting the ‘real harm’ test (Re E (Mental Health Patients)  1 WLR 245), HHJ Cardinal adopted the approach taken in Durham County Council v Dunn  EWCA Civ 1654; namely whether disclosure denial was ‘strictly necessary.’ He held that the Court should approach the matter as follows:
- The Rules and the decided cases clearly point to a presumption that there should be disclosure of all documents unless good reason to the contrary are shown - is the withholding of disclosure strictly necessary?
- Applying the test of strict necessity involves the Judge who is to decide the case reading the unredacted documents and deciding for himself whether or not the documents can be withheld.
- In deciding whether or not documents should be so withheld the Judge should bear in mind the best interests of P.
- In determining best interests the Judge should conduct a balancing act, weighing up the competing rights of the parties under Articles 6 and 8 of the European Convention.
- Having done so the Court will direct accordingly but should as in public interest immunity cases keep the matter under constant review and invite further submissions if it deems it necessary.
- If the Judge determines that some documents can be disclosed to the advocate and not the party bringing the application he should direct/injunct counsel accordingly.
HHJ Cardinal accepted that RC’s Article 6 rights were engaged as she had the right to a fair trial of her application for contact,
"33… But she is not entitled to examine the private life of this vulnerable young woman; I am satisfied that it would be disturbing for CC for her rights to be invaded - her family is under strain. I do not consider it right for her to have to be told that private information had been divulged to a party whom in reality she does not know. It is right for the Official Solicitor in my judgment to seek to avoid any distress the knowledge of disclosure might cause CC."
On the facts, HHJ Cardinal decided that the birth mother could see the redacted psychological report but not the social work evidence; this would be disclosed only to her counsel who was injuncted from revealing it to her. Although there was "no evidence that RC would act improperly in abusing such information" (paragraph 33), withholding it was held to be strictly necessary and would not breach her Convention rights.
The approach taken by HHJ Cardinal in this case to the question of disclosure is an important amplification of an area in which the Rules are silent. In its approach to the threshold to be adopted, we would respectfully suggest, the correct one, as regards the adoption of the "strictly necessary" test propounded in the Durham case (as to which, see our earlier comment).
One aspect of the decision, however, does perhaps give pause for particular thought, namely the decision to limit disclosure of the social work evidence to the birth mother’s Counsel alone. This appears to have been ordered by HHJ Cardinal without reference to authority or argument, and we are aware that other judges in the Court of Protection have taken similar steps in unreported proceedings.
However, prohibiting Counsel (or Counsel and solicitors) from disclosing or discussing evidence with their client puts them in a difficult and potentially invidious position. Further, such a limited confidentiality ring is inherently uncomfortable because (quite possibly) everyone else in the courtroom will know what the legal adviser’s client does not.
In proceedings before the Mental Health Tribunal, proceedings with which many advocates, and some judges, in the CoP are familiar, such limited disclosure is not unknown, but – unlike in the CoP – there is a statutory basis for this (rule 14(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/269).
That raises the question of whether such rings can properly be ordered in the CoP. in the absence of such a statutory basis. A case decided in the judicial review context at the end of last year (not referred to by HHJ Cardinal) would appear to confirm that ‘confidentality rings’ limited to Counsel are acceptable subject to certain conditions. In his judgment in R(Mohamed) v SSD  EWHC 3454 (Admin), Moses LJ gave his reasons for ordering that some information in respect of which public interest immunity had been claimed could in principle be provided to the Claimant’s lawyers alone (and considered in camera). He asked himself (at paragraph 6) whether there was "some principle which precludes the court from ordering disclosure to those nominated within the confidentiality ring? I must recall that these are proceedings in which the claimant moves by way of judicial review but I shall assume that there is no distinction between the principles which apply in this type of litigation and in a civil claim." Having reviewed the authorities, Moses LJ held that there was no principle which prevented disclosure to those nominated within the confidentiality ring. However, he noted that:
28 The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client's case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.
It would seem to us that:
- the principle set down here is of equal relevance in proceedings before the Court of Protection; such that
- it must be doubtful whether limited disclosure can be ordered in the absence of clear and express consent on the part of the affected party’s legal representatives; and that
- under no circumstances would the appointment of a Special Advocate be appropriate: see the decision of the Supreme Court in Re A (A Child) (Disclosure of Third Party Information)  UKSC 60;  3 WLR 1484.
Another interesting feature of this case relates to Article 8. HHJ Cardinal held that the birth mother could not rely upon her right to respect for "family life" because the legal relationship with her daughter had been severed by the adoption and "[t]he fact of the correspondence cannot be said to have reintroduced some sort of family life for the purposes of Article 8" (paragraph 37). It is not clear whether the point was taken but, of course, even in the absence of "family life," Article 8 protects the right to respect for correspondence.