[2015 (2) JLR 126]
X CHILDREN v. MINISTER FOR HEALTH AND SOCIAL SERVICES
ROYAL COURT (Scriven, Commr.): December 8th, 2015
Family Law—children—confidentiality of documents—disclosure—in children’s action against Minister for Health and Social Services concerning child abuse and neglect expert reports subject to implied undertaking of confidentiality—disclosure ordered of anonymized reports to Independent Jersey Care Inquiry—factors considered
The plaintiffs brought proceedings against the Minister for Health and Social Services for negligence and/or breach of a duty of care.
The plaintiffs brought claims against the Minister for Health and Social Services alleging failure to protect them from sexual, emotional and physical abuse and neglect which they suffered as young children. The Minister admitted that the plaintiffs had suffered abuse and neglect but denied negligence. In the course of the proceedings, both parties obtained expert reports.
In 2014, the Independent Jersey Care Inquiry, which was established by the States of Jersey to investigate historic child abuse on the Island, sought disclosure of the experts’ reports for use in its investigations into the Jersey child protection system. In October 2014, the court granted leave to disclose the reports in a redacted form which preserved the anonymity of the plaintiffs and any other minor children referred to.
The experts subsequently provided further reports of which the Inquiry now sought disclosure. It wished to consider the reports as part of its investigation, to make them available on its website and to be able to use them as it saw fit in accordance with its remit. The plaintiffs consented to the Inquiry’s request provided the reports were anonymized.
The Inquiry submitted inter alia that when deciding whether to permit disclosure of the reports, the factors to be considered included: (a) the function of the Inquiry to elicit and make publicly available relevant evidence; (b) the plaintiffs wished the reports to be disclosed; (c) disclosure was in the plaintiffs’ interests as the commentary provided a history of social services involvement and, in assisting the Inquiry, helped to set out any lessons that could be learned; (d) there was a public interest in furtherance of the Inquiry’s function that the reports were made public and this was an important case study; (e) the children’s identities would be protected; and (f) any concerns that the proper function of Children’s Services would be undermined by disclosure were overtaken by the scope of the Inquiry’s public evidence to date—the functioning of Children’s Services was already under scrutiny. The reports were not subject to an implied undertaking of confidentiality.