Legal Updates

In the decision of Re R (Care:Disclosure:Nature of Proceedings) [2002] Mr Justice Charles gave important guidance on a number of matters relevant to the conduct of care proceedings: preparation of cases by a local authority and other parties, disclosure of information held by the care authority, and the conduct of work where sexual abuse allegations are not proved.

The local authority started care proceedings on the basis of allegations of neglect, emotional abuse and sexual abuse. The parents accepted that the threshold criteria were met in respect of neglect, but always denied sexual abuse. On the 13th day of the hearing the sexual abuse allegations were dropped because of new information.

The judge said that when considering the preparation of statements and disclosure, it should be taken into account that care proceedings were not purely adversarial. Where an authority was seeking public law orders, it should identify as soon as possible the allegations that it was seeking to establish, separately from the statements in which the evidence was set out. Other parties were under a duty to give an account of their case and provide confirmation, rather than adopting a stance of 'you prove it'.

Statements should be prepared by someone with a) a proper understanding of the relevant legal principles, b) the issues of the case and c) the procedures of the court, d) who had made a proper examination of all the background material and relevant files, and e) who had had a proper discussion with relevant witnesses to ensure their statements contained a full and proper account, f) recorded sources of hearsay and the relevant background to and circumstances in which the matters set out took place, and g) who had properly considered what further information or material should be obtained.

All parties and their advisers and not merely the children's guardian were under duties to check the decisions made as to the experts to be instructed and the terms of those instructions and the input they wished to have into those instructions, consider whether the authority had performed its duties,

consider what further information and material should be obtained and pursue issues as to disclosure at interim hearings if not agreed.

Local authorities and guardians should be more willing to exhibit their notes of conversations and incidents relied on as evidence for findings at the threshold or welfare stage of proceedings. Anyone advancing a claim to public interest immunity in respect of material held by a local authority should set out the specific harm that it was alleged would be caused to the public interest by disclosure. The judge clearly considered that there was no general immunity from disclosure resulting from documents being within a class of material held by a local authority. (Note there is an additional test for withholding information if its disclosure would cause significant harm to the child.)

Where a carer made allegations of sexual abuse or similar allegations, a full history should be taken by a person with relevant experience. If that had happened in the case time and money would have been saved. As a result of that failure the local authority suffered an order to pay the costs of other parties. Most importantly the judge held that even though serious allegations were made by children, unless and until the authority decided to seek to establish the allegations to the civil standard required in care proceedings, they had to proceed in all their dealings with the family on the basis that the allegations had not been proved. Similarly if the sexual abuse allegations were not proved, care plans had to be based on the threshold criteria that were proved.

Richard White

White and Sherwin Solicitors