Minister for Health and Social Services v X

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Allo,Newcombe
• Judgment Date: 08 October 2009
• Neutral Citation: [2009] JRC 191
• Date: 08 October 2009

[2009] JRC 191

ROYAL COURT

(Family Division)

Before:

J. A. Clyde-Smith, Esq., Commissioner and Jurats Allo and Newcombe.

Between

The Minister for Health and Social Services

Applicant

and

SX

First Respondent

RX

Second Respondent

and

The X Children

Third, Fourth and Fifth Respondents

Advocate E. L. Hollywood for the Applicant.

Advocate C. Hall for the First Respondent.

Advocate T. V. R. Hanson for the X Children.

The Second Respondent was not present and not represented.

Authorities

Children (Jersey) Rules 2005.

Children (Jersey) Law 2002.

In the matter of Re D (Disclosure: Private Law) [2009] JRC 067A.

Re EC (Disclosure of Material) [1996] 2 FLR 725.

Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76.

Re X (Disclosure of Information) [2001] 2 FLR 400.

Re Manda (Wardship: Disclosure of Evidence) [1993] 1 FLR 205.

THE COMMISSIONER:

1 On 27 ^th August, 2009, the Court gave leave under Rule 25 of the Children (Jersey) Rules 2005 (“the Children Rules”) for the disclosure of documents filed in care (public law) proceedings involving the X children.

Background

2 The X children have suffered significant harm during their short lives. It may be that this suffering is sufficient to found an action in negligence now or in the future against the States of Jersey, or successful claims for compensation from the Criminal Injuries Compensation Board. Mr Hanson submitted on behalf of the X children that such proceedings or claims would be assisted by access to the papers filed within the care proceedings.

3 Rule 25 of the Children Rules is in the following terms:-

• “25. Confidentiality of documents

• (1) No document, other than a record of an order, held by the Court and relating to proceedings may be disclosed, other than to-

• (a) a party;

• (b) the legal representative of a party;

• (c) a person appointed under Article 75;

• (d) a welfare officer; or

• (e) an expert whose instructions by a party has been authorized by the Court ,

• without leave of the Court.

• (2) Nothing in this Rule shall prevent the notification by the Court of a direction under Article 29(1) to the Minister.

• (3) Nothing in this Rule shall prevent the disclosure of any document relating to proceedings by a welfare officer to any other welfare officer unless that other welfare officer is involved in the same proceedings but on behalf of a different party.”

4 Although reference at Rule 25(1)(b) is made to documents being disclosed to legal representatives, it was submitted by Mr Hanson that this applies to those representing parties within the proceedings under the Children (Jersey) Law 2002, and not any other proceedings which are not subject to the same confidentiality protections which apply in children's proceedings. Therefore, if documents from the care proceedings are to be given to lawyers (other than Hanson Renouf) who may in the future act for the children, in order to ascertain if future proceedings would be in their interests, or if claims can be made to the Criminal Injuries Compensation Board, then leave of the Court appears to be required.

5 There are no Jersey cases directly on the issue of disclosure of documents in public child law cases into civil proceedings. However, in the case of In the matter of Re D (Disclosure: Private Law) [2009] JRC 067A, a case concerned with disclosure for criminal cases, leave was given for the disclosure of documents to the police legal advisers for the purpose of determining in criminal proceedings against the husband (and for no other reason) whether the documents disclosed undermine the prosecution case or would affect whether it was in the public interest to prosecute the husband. The cases cited to the Deputy Registrar were English cases (there being no local authority) which related specifically to disclosure of documents from family proceedings (mostly care proceedings) into criminal proceedings, whether to assist the prosecution or the defence. The Deputy Registrar referred in particular to the case of Re EC (Disclosure of Material) [1996] 2 FLR 725 (sub nom Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 which gave guidance as to disclosure into criminal proceedings and the matters to be taken into account including specifically:-

“The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.”

6 In the English case of Re X (Disclosure of Information) [2001] 2 FLR 400 disclosure of papers within care proceedings to four victims of abuse, to their mothers, their social workers, health professionals and legal advisers was sanctioned to enable them to obtain therapeutic help...