Duty of confidentiality vs. duty of disclosure: child proceedings

Mr Justice Holman ordered, at Birmingham District Registry, that an application in child proceedings that he started to hear, be heard “from scratch” by a different judge, as notice was not given to the child’s parents or stepmother.

A 15-year-old boy, currently the subject of care proceedings, was living with his father until December 2015 when he was transferred to foster care under an interim care order. The Final Hearing in these proceedings is due to take place on 17^th May 2016.

The child gave some information to both his social worker and his guardian, and stated “very strongly that he does not wish either of his parents or his stepmother to know the information in question.” The child’s guardian considers that the duty of confidentiality should be respected in this instance as the information is personal to the child, with no relevance to the care proceedings, the parents or the stepmother. However, the local authority believes they are under a duty to disclose the information to the parents unless prevented by the court.

Therefore, the guardian filed an application on 18^th March 2016, naming the local authority and both parents as respondents, requesting that the parents not be made aware of the application “or that it is being heard… be dealt with privately or that the court makes some other arrangement to ensure that the other parties are not put on notice.” The application was subsequently heard in private without the parents or stepmother being given notice that the hearing would be taking place.

The local authority have not yet informed the boy’s parents or stepmother about the information or the hearing although “they do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings.” However, all parties were in agreement that if privy to the information “one or other or both” parents may seek to use it in some way as part of their position in the final hearing of the care proceedings.

Case authorities and the duty of disclosure

The hearing before Mr Justice Holman was in private to “preserve the confidentiality of the information”, and only the guardian, the local authority and their advocates were present or even informed of the hearing. A general discussion ensued regarding case authorities on the duty of disclosure, in particular the Court of Appeal decision in Re M (Disclosure) , and Re C (Disclosure) . In Official Solicitor to the Supreme Court v K and another a practical solution was given, allowing for counsel in such situations to be informed of the “nature and content of the confidential information…on the basis that counsel will not communicate the… confidential information to his or her solicitor or client without the permission of the court.” This solution is supported by the Court of Appeal ruling in Re M.

In addition, it became apparent during the course of discussions that in the present case, counsel on behalf of the guardian had discussed the confidential information with a colleague in chambers who was then instructed by the father in the main care proceedings. Mr Justice Holman stated that in light of this “some quite difficult questions may arise in relation to the professional duties of counsel to his client on the one hand and… the aura…of candour and confidentiality…when one barrister discusses a knotty problem with a colleague.”

Mr Justice Holman states in his judgment that “it began increasingly to appear to me that there was considerable difficulty in dealing with this matter here today when the other respondents were not on any notice whatsoever of the existence of the application, even if they could not at this stage be told the nature of the information in point.” The judge ruled that he would be unable to rule on the application with “propriety” in circumstances where the parents and their legal advisers have had no notice or knowledge of the impending application “the court would risk complicity in a deception” as to the procedure (rather than the information itself). Mr Justice Holman stated that in such situations, where there may be a ruling by the court over non-disclosed information that the parents may later seek, “then ‘conspiracy theory’ and imaginings may inevitably takeover” in knowing that information has been withheld, without knowing the nature or severity of the information involved.

Therefore, although there is an argument for “judicial continuity”, Mr Justice Holman considered that it would be better for the application to be adjourned and re-heard by a different judge, as the respondents should be put on notice. As he had heard the majority of the arguments and given “provisional views on the substance of the matter” Mr Justice Holman considered that a new and impartial judge should hear the application rather than listing the application as part-heard before himself, stating that “if there is now to be a hearing on notice to the respondents, it should be a hearing which genuinely starts afresh.”

Mr Justice Holman gave an order at the hearing, in line with the authority of Official Solicitor to the Supreme Court v K and another and Re: M (Disclosure), that if the respondent’s Counsel are willing “to give a written assurance that he or she will not, without the further permission of the court, reveal or disclose the information in point to his or her client, then that Counsel may be supplied in advance of the hearing with the …bundle which is before me today” which included the confidential information.

He did speculate that in another situation, where the local authority and a child’s guardian were both in agreement that the confidential information should not be disclosed to the parents then non-disclosure “might indeed follow without any involvement at all on the part of the court.”

This case has illustrated the difficulties which can arise between the duty of confidentiality and the duty of disclosure, particularly where proceedings concern a minor, and where information is looking to be withheld from those with parental responsibility.