Adam Fullwood (instructed by QualitySolicitors Jackson & 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.
RC, the birth mother, applied for indirect contact to be reintroduced with her daughter, CC, who had been given up for adoption before she was 18 months old, was now aged 20 and suffered from, inter alia, learning difficulties, cerebral palsy and epilepsy. Such evidence as could be disclosed revealed that CC had some difficulty in understanding or weighing up the possible benefits or disadvantages of seeing her birth mother. There had been indirect contact between CC and RC until 2010/11 organised by the adoption agency through the adoptive mother which had stopped when the adoptive parents separated. The Official Solicitor was concerned to ensure that CC’s entitlement to privacy and confidentiality were preserved as far as possible in her best interests, and that disclosure was limited to what was absolutely necessary for the proper determination of the case. Accordingly, although there was no formal application for disclosure nor a formal application to exempt documents, the Official Solicitor sought permission to withhold the social worker’s statements and the unredacted report of a clinical psychologist setting out (a) the nature and extent of CC's disabilities and (b) an assessment of CC's capacity to litigate and to make decisions about direct and indirect contact with the birth mother.
Disclosure was governed by Part 16 of the Court of Protection Rules 2007 and, although in principle cases ought to proceed on the basis of disclosure, any presumption in favour of such disclosure had to be tempered by the court’s paramount duty to address the best interests of the incapacitated person and the need to weigh up the article 6 and article 8 rights (of the Convention for the Protection of Human Rights and Fundamental Freedoms) engaged in answering the question as to what must be disclosed. The birth mother did not need to see the social worker’s statements to take her application further and at the present stage it was not necessary for the unredacted psychologist’s report, nor the social worker's evidence at all, to be disclosed. It could not be said that the birth mother‘s right to respect for family life was being invaded and the fact of the correspondence could not be said to have reintroduced some sort of family life for the purposes of article 8. By contrast, the daughter had a right to respect for family life with her adoptive father and those she knew now as “family”. There was no real violation of the Convention rights of the birth mother, alternatively any intervention was reasonable and proportionate in the circumstances (paras 32, 33, 35, 37).
In such cases the court’s approach should be: (i) the 2007 Rules and the decided cases clearly pointed to a presumption that there should be disclosure of all documents unless good reason to the contrary were shown, ie was the withholding of disclosure strictly necessary? (ii) Applying the test of strict necessity involved the judge in reading the unredacted documents and deciding for himself whether or not the documents could be withheld. (iii) In deciding whether or not documents should be so withheld the judge should bear in mind the best interests of the incapacitated person. (iv) 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 Convention. (v) Having done so, the court would direct accordingly but should, as in public interest immunity cases, keep the matter under constant review and invite further submissions if deemed necessary (paras 22, 35).
Human Rights Act, 1998, Sch 1, Pt I, art 6, 8