CAZALET J: In the light of the difficulties which have arisen in this case in regard to: (1) assembling the relevant expert evidence, and (2) the claim of public interest immunity by the local authority, I thought that it would be helpful if I were to state the lessons which have, perhaps, been learned from this hearing. Counsel have made most helpful submissions to me, and as was acknowledged by them I deal with these matters (which have no direct bearing on the orders which I have made in the instant case) in open court by way of an addendum to my judgment.
Expert evidence
In Note: Re R (A Minor) (Experts' Evidence) [1991] 1 FLR 291 and Re G (Minors) (Expert Witnesses) [1994] 2 FLR 291, the role of the expert was considered in detail. Further, Thorpe J, as reported in [1994] Fam Law 533, gave a most useful analysis of the difference between the role of the expert in family proceedings and in other litigation. I do not repeat the matters there set out save to emphasise the vital importance of the expert within the family justice system. Objectivity and proper research are the two beacons which must guide him since otherwise a misleading opinion may be given and this of itself may result in a child being wrongly placed with possible disastrous consequences for that child's later life.
In the instant case the court has had the benefit of the opinion of a considerable number of experts, some with expertise in the same field, others in different fields. When the case was opened the experts had not conferred and it was anticipated that 2 weeks or thereabouts of the court's time would be taken up with their evidence. In fact when the essential facts and issues in dispute were established it became apparent that there were clear-cut areas of agreement and disagreement. A questionnaire was prepared for the experts concerned and in the event it was only necessary for two of them to be called. Indeed, if unusual problems had not arisen in the present case (with which I need not concern myself), it might well have been unnecessary to call even those two witnesses.
In order to ensure that expert evidence is cogently and concisely before the court at the outset of the hearing, I consider that certain specific directions can usefully be given beyond those which are currently the norm. In Re G (above) Wall J held (and I go to the headnote at p 292B):
'(3) Generalised orders giving leave for the papers to be shown to an expert or experts should never be made. The expert or area of expertise should be identified in the order granting leave.
(4) As part of the process of granting or refusing leave, either for the child to be examined or for papers in the case to be shown to an expert, the advocates had a positive duty to place all relevant information before the court, and the court had a positive duty to inquire into that information.
(5) Where the court exercised its discretion to grant leave for the papers to be shown to a particular expert, the court should, wherever possible, go on to give further directions as to the timescale, the disclosure of reports to the parties and other experts, discussions between experts and the filing of further statements. If it was impractical to give these directions at the time that leave was granted, the court should set a further date for directions.'
I wholeheartedly endorse each one of those propositions. It seems to me to be essential that each expert who is instructed should, as part of his instructions, be expressly required to hold discussions with other experts in the same field and then to set out in writing prior to the trial the areas of agreement and dispute. Also, it may be that experts for different parties will be asked to advise on different sets of facts. For this reason it is important that each letter of instruction to an expert should be disclosed to the other parties, with any documents supplied also being identified. If this step is taken, then if competing expert opinions are given it should immediately become apparent whether this has occurred because each expert has been advising upon a different set of facts. If there are issues between the parties as to certain factual matters which are relevant to the expert's opinion, then each expert should normally be asked to give an opinion on each set of competing facts. Upon the court determining the relevant facts it can then follow the appropriate expert view. Furthermore, any later change of opinion by an expert, whether given orally or in writing, must of course be communicated to the other parties as soon as possible.
Although the circumstances of the present case were unusual, it struck me that if one of the professionals concerned had been required to act as what one might call a general co-ordinator for the purpose of collating the expert reports and preparing a schedule for the court of the areas of agreement and dispute, a number of problems would have been avoided. It is the solicitor's job to ensure that the expert concerned in his particular case has prepared the letter of agreement and dispute. The co-ordinator would then incorporate all these letters into one schedule. In the normal case the role of the co-ordinator would be carried out most suitably by the guardian or the local authority, although there is no reason why it should not be one of those advising other parties to the litigation. If such a co-ordinator is to be appointed, his or her consent to that end should first be obtained.
Where expert medical evidence is to be called, the parties should take certain steps before the directional hearing and the court should then, in my view, consider giving directions along the lines indicated below.
Steps to be taken before the directions hearing
1. Any party proposing to apply for leave to instruct an expert should supply to all other parties and file with the court a written explanation of the area of expertise of the proposed expert together with reasons why it is submitted that the court should grant leave, such document to be filed with the court at least 10 days before the hearing at which the application is to be made.
2. Any party proposing to apply for leave to instruct an expert should contact the expert prior to the hearing of the leave application in order to ascertain the availability of the expert for the purpose of giving evidence at the substantive hearing.
Guide-lines as to directions which the court should consider giving in regard to medical evidence
1. Each letter of instruction to an expert shall point out as a condition of instructing that expert that the expert will be expected to prepare, after discussion with the other experts concerned, a joint document setting out the areas of agreement and dispute between them.
2. Each party shall provide a copy of the letter of instruction to each expert, together with a detailed list of all documents supplied to that expert, to all other parties within 7 days of instructing such expert.
3. Each party's legal adviser shall send a copy of the letter of instruction and list of documents provided by other parties to their own expert within 7 days of receipt.
4. Directions must be given as to when the expert's reports shall be served.
5. Insofar as any expert may provide further oral or written advice which changes a significant aspect of any previous written report, the substance of that advice shall be disclosed forthwith in writing to all the other parties.
6. Each party shall ensure that the expert instructed on his or her behalf shall provide a joint document setting out points of agreement and dispute with other experts (referred to in para 1 above) to be served on the other parties by . . . [date].
7. No letter served after the date set out in 6 above shall be admitted in evidence without the leave of the court.
8. At any application for leave pursuant to 7 above the legal advisers to the party making the application will be expected to show cause why they or their client should not pay the costs of the application.
9. The [local authority/guardian/solicitors] shall within . . . days of receipt of all the experts' letters referred to in para 6 above by . . . [date] serve on the other parties and file with the court a schedule setting out an outline of the points of agreement and dispute which appear from the letters referred to in para 6 above.
These suggested directions should be treated as guide-lines which should normally be followed, although there will be individual cases which will by their special nature require a departure from them.
Guide-lines as to procedure to be followed when public interest immunity is raised
In D v National Society for the Prevention of Cruelty to Children [1978] AC 178, HL it was established that NSPCC records are immune from disclosure because of the doctrine of public interest immunity. These records are analogous to those held by social services. In R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330 it was held that a local authority who brought care proceedings has a duty to disclose all relevant information in its possession or power which might assist parents to rebut allegations being made against them, save for that which is protected by public interest immunity. In Evans v Chief Constable of Surrey [1989] 2 All ER 594, Wood J, at p 596, held that once the issue of public interest immunity has been raised it is for the party seeking disclosure to show why the document should be produced. This was followed by the important Court of Appeal decision of Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36. The leading judgment of the court was given by Butler-Sloss LJ. I go to the headnote at p 36F which reads as follows:
'(1) Although general discovery was inappropriate in wardship proceedings, applications for disclosure of special documents might be made where considered suitable. Wardship proceedings were parental, administrative and inquisitorial rather than adversarial by nature and the court might at any time permit or, indeed, of its own volition require the production of documents it considered relevant.
(2) Social work and analogous records kept by a local authority were in a special category of immunity, justified by the particular circumstances of the welfare of children. However, there was no absolute rule against disclosure. It might be necessary for a local authority in child care cases to volunteer disclosure of certain records for the benefit of the child concerned. The practice obtaining in the Family Division of granting automatic immunity from production of social work records to parties other than the guardian ad litem had to be reconsidered. On the application of a party to the proceedings for disclosure of relevant documents, the court had to exercise its discretion and weigh up whether the public interest in protecting the social work records overrode the public interest that the party to proceedings should obtain the information sought in order to obtain legal redress. In some cases it might be necessary for the court to inspect the documents in order to decide whether production should be ordered. However, a court should only inspect documents where it had definite grounds for expecting to find material of real importance to the party seeking disclosure. It was for the party seeking discovery to establish the need for the production of the documents.'
In Re A and Others (Minors) (Child Abuse: Guide-lines) [1992] 1 FLR 439
Hollings J at p 446 (having referred to Re M (above)) went on to say this:
'The only further guidance that I feel able to give in the light of the above is to say that in disputed cases such as these, both in the interests of the children and justice to the parties, discovery ought to be given of original material recording matters of fact in relation to the children, their parents or other relevant persons, other than social workers, especially, of course, transcripts and records of matters in issue, but not unless expressly and voluntarily waived by the local authority notes or records of case conferences or meetings or similar meetings, where those attending should feel able to express their opinion freely, without having to look over their shoulder. Disclosure of case conference and similar notes, therefore, would normally be very much for the decision of the local authority. Application can always be made to the court if a refusal is considered unjustified, for, as Butler-Sloss LJ has emphasised, while social worker and analogous records kept by a local authority are in a special category, there is no absolute immunity against discovery.
I myself would expect, in a normal disputed case, if there is such a thing, that disclosure would be made of documents recording facts, but not those recording opinion or advice, including advice from third parties.'
In Oxfordshire County Council v M [1994] 1 FLR 175 the Court of Appeal held that experts' reports held by one party should be disclosed to the other party even if such reports were covered by legal professional immunity because the child's welfare must be promoted by disclosure of all relevant material.
Against that background I was asked to order that certain documents held by the local authority in their file relating to this particular case and also in another file relating to a different case should be disclosed notwithstanding the local authority's claim of public interest immunity. Having heard argument and considered those documents, I made what I considered to be the appropriate order. However, it emerged that there appeared to be no guide-lines as to the appropriate administrative arrangements and court procedures which should be followed in order to avoid costs and long drawn-out disputes at a hearing when public interest immunity is claimed.
In the circumstances, I thought that it would be helpful if I were to give some general guide-lines as to this. In my view it is the responsibility of the local authority actively to consider what documents it has in its possession which are or may be relevant to the issues as they affect the child, its family and any other person who is relevant in regard to an allegation of significant harm, and to the care and upbringing of the child in the context of the welfare checklist issues. The local authority should not content itself with disclosing the documents which support its case, but must consider itself under a duty to disclose in the interests of the child and of justice documents which may modify or cast doubt on its case. The particular concern should relate to those documents which actually help the case of an opposing party. If there is any doubt about whether the information is relevant, consideration should be given to notifying the affected parties of the existence of the material. Whilst the temptation to invite costly, intrusive and pointless fishing expeditions should be avoided, there should be a presumption in favour of disclosure of potentially helpful information. If documents are obviously relevant and not protected from disclosure by public interest immunity, then the local authority should initiate disclosure. The parties should endeavour to agree some sensible arrangement for the costs incurred in photocopying of documents.
If documents are apparently relevant but appear to be protected by public interest immunity from disclosure, a letter should be written by the local authority to the parties' legal advisers and to the guardian drawing general attention to the existence of the documents and inviting an application to the court if disclosure of the relevant documents is required. The appropriate order in those courts affected by the Family Proceedings Rules 1991 would stem from the power to give directions as to the service of documents - see r 4.14(2)(e) or, as to the submission of evidence, r 4.14(2)(f). In family proceedings courts, it is r 14(2)(e) or (f) of the Family Proceedings Courts (Children Act 1989) Rules 1991. The local authority should identify and flag the documents which they believe are or may be relevant. If possible, a short precis of the information should be prepared in order to assist the court which is to make the decision. If the court orders disclosure of the documents and if the nature of the precis satisfies the party affected that the material identified and disclosed is sufficient, then the directions hearing can proceed upon a short basis.
However, if the precis does not achieve agreement and the other party wishes to see more of the files, then some further guide to the file should be provided so that the court can carry out the balancing exercise envisaged in Re M (A Minor) (Disclosure of Material).
It is to be emphasised that as the law stands it is for the court to make the decision as to disclosure of documents covered by public interest immunity. If the view is taken that the witness statement served by the local authority identifies the matters of concern, then this can generally be taken to satisfy the disclosure requirements.
In all cases it is particularly important that the local authority should draw the guardian's attention to any matters of concern within the documents. Whilst it is the court's task to decide any contested disclosure matter, the guardian's full knowledge of the material may enable him to assist the court as to its relevance.
I turn to the position of the guardian. Pursuant to the provisions of s 42 of the Children Act 1989, the guardian may inspect the social services files in regard to the particular case under consideration. If he comes upon records which he believes to be relevant but which are not likely to be disclosed by the local authority, he should tell the local authority of this and invite a disclosure of the documents. If the local authority does not wish so to do, then he should bring the nature of the documents to the court's attention with a view to seeking the court's directions. The guardian must bear in mind that he is not entitled in law to disclose documents in breach of public interest immunity. Documents are only to be drawn to the attention of other parties if the court so directs.
If the above general guide-lines are followed either through directions or in practice, it seems to me that a sensible procedure will have been adopted to meet any questions of public interest immunity which may be raised.
Finally, I direct that nothing shall be reported from this judgment which is capable of leading to the identification of the child concerned.
DEBORAH DINAN-HAYWARD
Barrister
