In Re F (a minor) (Disclosure: Immigration)

Publisher	United Kingdom: High Court (England and Wales)
Author	Family Division
Publication Date	12 May 1994
Citation / Document Symbol	[1995] 1 FCR 589, [1994] 2 FLR 958, [1994] Fam Law 666
Cite as	In Re F (a minor) (Disclosure: Immigration), [1995] 1 FCR 589, [1994] 2 FLR 958, [1994] Fam Law 666, United Kingdom: High Court (England and Wales), 12 May 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6478.html [accessed 28 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

RE F (A MINOR) (DISCLOSURE: IMMIGRATION)

Family Division

[1995] 1 FCR 589, [1994] 2 FLR 958, [1994] Fam Law 666

Hearing Date: 12 May 1994

12 May 1994

Index Terms:

Family proceedings -- Disclosure -- Immigration proceedings -- Children Act proceedings -- Parents appealing immigration order -- Parents applying for leave to disclose documents in Children Act proceedings to special adjudicator in immigration appeal -- Whether Children Act material should be available in immigration appeal -- Conflict with confidentiality

Held:

The parents applied for leave to disclose Children Act proceedings documents to the special adjudicator in an immigration appeal. The parents were not legal immigrants to this country. The children would accompany the parents if they were forced to return home. One issue which would arise at the immigration appeal was that the father might be shot if he returned because of his political views.

Held -- allowing the application -- statements of evidence in Children Act proceedings were confidential, but there was not an absolute rule against disclosure and the court had a discretion (see p 962A-B below). In deciding whether to grant leave, the court had to balance the interests of the children with other interests (see p 959F-G below). The material in the Children Act proceedings shed light on the decision which the special adjudicator had to make but the question was therefore whether it was necessary for him to see all of the material. In the immigration proceedings, the issue would not be what was in the children's best interests (see p 960F-G below). The value of disclosure in terms of doing justice in the immigration proceedings outweighed the possibility of any harm to the children resulting from disclosure.

Cases referred to in the Judgment:

Brown v Matthews [1990] Ch 662, [1990] 2 WLR 879, [1990] 2 All ER 155, sub nom B v M (Disclosure of Welfare Reports) [1990] 2 FLR 46, CA

Counsel:

James Presland for the local authority; Nicholas Riddell for the parents; Donald Galbraith for the guardian ad litem

PANEL: Judge Coningsby QC

Judgment One:

JUDGE CONINGS By QC: I come to deal now with the application which has been made by Mr Riddell on behalf of the father and mother for leave to disclose to the special adjudicator in the immigration appeal certain documents in the Children Act 1989 proceedings. There is no dispute that the adjudicator should have the note of my judgment prepared by counsel of the last hearing and also a report by Dr M which has been put in at this hearing in relation to the father. I shall give leave in respect of those two documents.

The next document which it is argued should be disclosed is the statement of the new social worker which deals with all the matters that have occurred since the last hearing and sets out the care plan which has been agreed, subject to some minor variations. It is my view that that document needs to be disclosed in the immigration proceedings because it brings matters up to date, indicates the arrangements which are now coming into existence for the care of the children and also deals with certain things that have been said recently by Mr and Mrs F, which need to be read in context with what they have said on earlier occasions and with my findings in the judgment.

The question after that is whether leave should also be given for the other papers in the Children Act case to be disclosed to the special adjudicator, and this I think is more difficult. Mr Riddell says that they should be, because in order to obtain a full understanding of the social worker's statement it is necessary for the earlier evidence to be read. That would include, amongst other things, the evidence of Mrs F in a full statement which she made and the evidence in a substantial statement of the previous social worker (I think in fact she made two statements). There were also statements from other social workers, and there were some notes made by social workers which were put in on the last occasion. Indeed, one or two other documents were put up during the course of the hearing, which now form part of the written material.

My concern has been that what is being sought in this case is likely to be sought in many other similar cases where there are immigration appeals going on at the same time as Children Act 1989 proceedings. My own experience of this field is that it is common for there to be both types of proceedings going on at once and therefore a point of substantial principle arises as to whether all the material in the Children Act proceedings should on a standard basis be available to the special adjudicator in immigration.

I believe this to involve an important question of principle and a difficult one. The starting-point is that statements in evidence put in in Children Act proceedings are confidential, in the sense that the court does not sit openly and people who make statements for these proceedings do not expect their statements to be used in other proceedings. Furthermore, on general principle it is not desirable that evidence which has been brought into existence in relation to the lives of children should be used otherwise than in proceedings involving those children.

However, there is not an absolute rule against disclosure and the court has a discretion. The statement at 1 [1084] in Clarke Hall and Morrison on Children (Butterworths) relating to wardship is probably applicable also in Children Act cases. It reads:

'In deciding whether to give leave the court must balance the interests of the wards (but not necessarily treating their welfare as the paramount consideration) with other relevant interests.'Now what is the other interest here? I consider that the other interest is that the special adjudicator should have before him all the material which is properly available upon which he can decide the immigration appeal. The question involved in the proceedings before him is whether or not the parents should be deported, they not being legal immigrants into this country. Of course if they have to go to Angola which is the country they come from then the children will go with them.

It is clear from that that the special adjudicator is not concerned with the issues in the Children Act proceedings in the way in which this court is concerned with them. His interest in them will be a limited interest. I am not fully aware of the precise issues in the immigration appeal, but I do know that one of them is that the father in this case claims that if he goes back to Angola he is likely to be shot, because he is a person who is politically unacceptable there in the light of involvements which he had before he left Angola.

The adjudicator will be concerned as to whether or not that allegation by the father is true, and the behaviour of the father while in prison in making at least two attempts or apparent attempts on his own life will be of relevance. In that connection it is also relevant to know what he has said on various occasions. Likewise, because the mother and the father have been meeting each other and talking about what he has done and about their fears, it is also relevant for the adjudicator to know what the mother has been saying. A simple way of putting the issue is to ask the question, 'Have these suicidal episodes and talk of committing suicide, both by him and by the mother, been manipulative efforts by them to try to create a picture that they are afraid of going back to Angola, when that is not in fact true? Or has their conduct and indeed what they have been saying been due to a real fear of serious harm occurring?' I accept, therefore, that it is germane to what the special adjudicator has to decide for him to see at least that part of the material in the Children Act proceedings which sheds light on the decision which he has to make. The question is whether it is necessary for him to see it all.

As far as the parties are concerned, and this I think is important, the mother and father (as I have said) both apply for all the material to be disclosed. The position of the guardian ad litem for the children is that she is not opposing the application for all the material to be disclosed. Her position, which is really quite a straightforward one, is that if there are fears that the parents may be harmed if sent back to Angola, particularly the father, then that would on the face of it be contrary to the interests of the children. Therefore all the material which points in that direction should be available to the adjudicator, because as seen from the point of the view of the guardian ad litem, it is better for the children that the parents should not be deported. That, I think, is an understandable and indeed a proper position for the guardian ad litem to take. But it is not based upon a consideration of all the criteria which this court has to consider, although it is based upon part of the criteria.

As I have said, this court is concerned with justice being done in the immigration proceedings, and justice may go either way. It may be just to enforce the broad principles of immigration law and require this family to go back to Angola, or it may in the end not be. In the immigration proceedings the issue will not be a question of what is in the best interests of the children. In other words, the guardian ad litem's approach will not be the approach of the immigration adjudicator. Nevertheless I do consider it to be of importance in my decision that I do not have a guardian ad litem who is opposing the disclosure of these documents. I can support her view to this extent that,

having looked at the documents (indeed, I also have knowledge of them from the previous hearing) I independently take the view that there is nothing in the release of those documents to an adjudicator which would be detrimental to the children.

Now the position of Mr Presland, who appears for the local authority, is that he accepts that there is a fundamental principle against the use of Children Act documents in other proceedings, and he says that in this particular case they should not be released unless there is risk of injustice in the other proceedings. But having considered the particular documents in this case he accepts that there will not in fact be any harm to the children if all the documents are disclosed, and therefore while seeking to protect the principle he does not in this particular case argue against the disclosure.

Mr Riddell says that the test suggested by Mr Presland is too narrow. Mr Riddell says that one should not simply be asking oneself if there is a risk of injustice in the other proceedings, but that the test suggested in 1 [1084] of Clarke Hall and Morrison is a wider test, where it talks about 'the other relevant interests'. But I accept that in this particular case what I ought to be concerned about is whether there might or might not be injustice in the immigration proceedings if these documents are not disclosed.

I take the view that it may be of assistance to the special adjudicator to have sight of these documents. It is difficult to say to what extent it may assist him, but knowing what the mother and father have said on various different occasions about their fears of going back to Angola and the effect of those fears upon them is relevant and germane to the issue before the adjudicator.

There are two difficulties which I face. One is the broad issue of whether I should breach the principle of protecting these documents, and the other is the problem that even if I do (so that the adjudicator has all the documents) he will still not have access to a material part of the evidence which was before this court, because on the last occasion there was a hearing at which the mother gave evidence for some time and was cross-examined, the latest social worker gave evidence and was cross-examined, and I think one other social worker also gave evidence. My decision was based not just on the written material but on the oral evidence which I heard, and I was much influenced by the examination-in-chief and cross-examination of the witnesses. I have endeavoured to summarise that in the judgment which I gave, but when it comes to an examination of what particular people have said on particular occasions, it is not really a very satisfactory state of affairs for the adjudicator simply to have the written material and not to have access to the oral evidence.

What ought to be done in this situation? I have concerns about releasing more than the three documents which are agreed to be released and releasing all the further documents as well, when I know that having done that I have still not given anything like a full picture to the adjudicator. There is a sense in which releasing the further documents will mislead as well as inform.

In the decision which I made on the last occasion I was in a sense more influenced by the oral evidence which was given than by the written evidence, because it was when I heard the oral evidence that I was able to see and hear witnesses and form views about the reliability or otherwise of witnesses. I reached my conclusions in the end on the basis of the oral evidence as well as the written evidence. So I want to draw attention to that very considerable difficulty. It can be overcome by the adjudicator having a transcript of the evidence given on the last occasion, and I believe that serious consideration should be given to that being done if I do give leave for the rest of the written material to be disclosed. But that will increase still further the scope of the material to be disclosed.

I return now to the essential difficulty, which is the conflict between the principle of confidentiality in Children Act cases and the desirability of releasing documents so that justice can be better achieved in the immigration proceedings. There is a discretion which the court has, and I follow the guidance suggested in the passage which I have quoted and also in Brown v Matthews [1990] Ch 662, sub nom B v M (Disclosure of Welfare Reports) [1990] 2 FLR 46. I believe that in exercising this discretion it is important for the court to look at the material to be disclosed and to ask whether the welfare of the children is likely to be prejudiced in any way by the disclosure of the material. I have looked at it with that in mind.

There are many cases where the material in Children Act cases includes detailed evidence of the behaviour of the children. Sometimes it is behaviour which has been aberrant and unruly; sometimes it includes evidence of complaints that the children have made about sexual abuse, physical abuse or emotional abuse. Sometimes it deals with ill-health of the children, mental or physical. Sometimes it is material which could be embarrassing to the children if it was spoken about outside court, and sometimes there is even criminal behaviour by children referred to in the evidence.

This case is not like that at all. There is nothing in any of the statements in this case which discusses the behaviour of the children. The case is not about the behaviour of the children. There has never been any poor behaviour by the children. They have been brought up properly and to a high standard by their parents, particularly their mother, and social services have never had any concerns about the children. The result of that is that these statements do not disclose anything of a confidential nature with regard to the children themselves. The statements are all about the parents, the fears they have, suicidal episodes and the consequences of the immigration proceedings. Therefore, use of these documents outside the Children Act court will not result in any embarrassment to the children in relation to their own lives, their own behaviour, their own personalities.

That does not totally eliminate the possibility of effect upon the children because discussion about their parents can cause some distress to children. But I think that that is of a wholly different order and of a different level of importance. I believe that it is fundamental to my decision that this is not a case in which any of the evidence actually touches upon the lives, characters and experiences of the children.

For that reason I do feel able in this case to allow all the written documents to be disclosed to the special adjudicator. I have come to the conclusion that the risk of harm to the children is virtually non-existent in this particular case for the reasons which I have given. It will assist the adjudicator to see these documents and help him to arrive at a fair, right and just conclusion on the issues which he has to decide. Therefore, the balance falls in favour of disclosure. The value of disclosure of the documents in terms of doing justice in the immigration proceedings outweighs the possibility of any harm to the children resulting from disclosure.

On that basis and for that reason I shall allow the documents to be disclosed. However, I do indicate to the special adjudicator, if any indication is needed, that he or she should use these documents with the greatest discretion and not allow them to be seen by people other than himself and any other person properly acting in a position of responsibility within the immigration proceedings. There will be a provision that as soon as the documents have been made use of in those proceedings, they shall be returned to this court.

I shall therefore make a direction that leave will be given to the parents to disclose the written documents which have been before the court in the Children Act proceedings to the special adjudicator in the immigration proceedings, including the note of judgment, the report of Dr M and the statement by the most recent social worker. I should like the adjudicator's attention to be drawn to the fact that there is available a transcript of the evidence given on the last occasion and a transcript of this judgment, so that if he wishes to do so, he may apply for them. If he does so, then I shall give leave for those transcripts also to be made available to him.

I shall direct that the solicitor to the mother and the father shall have access to the court file for the purpose of extracting copies of all the documents on the court file which are needed for the special adjudicator. The purpose of that is that some documents were put in before me on the last occasion of which the solicitors may not have copies, and if all the documents are now to go to the adjudicator it is important that the documentation should be complete. These directions will have to be drawn up by counsel.

DISPOSITION:

Order accordingly.

SOLICITORS:

Local authority solicitor; Bindman and Partners for the parents; Galbraith Branley for the guardian ad litem