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L A W R E P O R T: Child case report can be seen by police

Re L (minors: disclosure of reports). Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Swinton Thomas and Lord Justice Morritt). 14 March 1995
Re L (minors: disclosure of reports). Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Swinton Thomas and Lord Justice Morritt). 14 March 1995

A medical report, concerning the consumption by a child of a quantity of methadone, that the child's mother had commissioned in support of her case in care proceedings and which had, without her objection, been filed with the court and made available to the other parties, was not protected either by legal professional privilege or by the privilege against self- incrimination, and could be disclosed by the court to the police for the purpose of investigating whether an offence had been committed.

The Court of Appeal dismissed the mother's appeal against the decision of Mrs Justice Bracewell, on 1 July 1994, on an application by Greater Manchester Police Authority.

Lindsey Kushner QC and Lesley Newton (Green & Co, Manchester) for the mother; David Harris QC and Yvonne Coppel (Salford Metropolitan Borough Council) for the police authority.

SIR THOMAS BINGHAM MR said the mother and father, both heroin addicts, had two children: E, a girl born 1 May 1990, and C, a boy born 11 December 1991. In January 1993, E was admitted to hospital having consumed a quantity of methadone. The mother said the child had accidentally drunk it from a beaker left carelessly in the kitchen. Emergency protection orders were made in relation to both children and they were placed with foster parents. Interim care orders were granted and renewed.

In February 1993, the mother and father were both sentenced to imprisonment for offences unrelated to these proceedings. On their release, they did not resume their association.

In May 1993, a district judge granted the mother and father leave to disclose the court papers to a medical expert for a report regarding E's consumption of methadone. It was part of the order that the report was to be filed with the court and so (by virtue of rules 4.23 and 10.20 of the Family Proceedings Rules 1991) made available to all parties. No part of that order had been challenged.

A consultant chemical pathologist wrote a report addressed to the mother's solicitors dated 10 August 1993. It was filed with the court. It recorded what the mother told the hospital in January about how E came to drink the methadone; the condition of E on arrival at hospital and details of her treatment; and the consultant's own observations. He did not find the mother's account of events at all probable.

In October 1993, the police authority applied to be joined as a party to these proceedings, under rule 4.7(2)(a) of the 1991 Rules, and to be provided with copies of medical reports on E for the purposes of investigating whether any criminal offences had been committed.

The judge held that she had jurisdiction in proceedings under the Children Act 1989 to order disclosure of documents filed within those proceedings. She held that the court could order the joinder of the police authority as a party for the purpose of disclosure, but it was not necessary to do so where the application was for disclosure only. She concluded, balancing the importance of confidentiality in care proceedings against the public interest in the administration of justice, that the court should exercise its discretion in favour of disclosing the report to the police.

It was argued, first, that the court had no jurisdiction to order disclosure because the report was protected by legal professional privilege, which the court was not authorised to override. But it was hard to see how a such a privilege could be said to cover a report prepared pursuant to an order requiring it to be filed with the court and made available to all parties. Even if the report was so privileged, there was binding authority in Oxfordshire County Council v M [1994] Fam 151 to the effect that the paramountcy of the child's welfare, combined with the special role of the court in care proceedings under the Children Act, empowered the court to override legal professional privilege.

It was argued, secondly, that disclosure of the report would infringe the mother's privilege against self-incrimination. But while the privilege prevented a party being required or compelled to incriminate himself, it did not prevent a party answering a question or producing a document if he was willing to do so.

In this case, the mother voluntarily initiated the process which led to the writing of the report. She then duly filed the report without compulsion and without claiming the privilege, as she might have done.

It followed that the court had discretion to disclose the report. On the facts of the case, moreover, the judge's decision to make such an order was reasonable.


Paul Magrath, Barrister