Report of The Independent Jersey Care Inquiry

This important and impressive piece of work can be accessed on the following link:

Appointed as Guardian ad Litem of the X and Y children, Advocate Hanson was pleased that the children that he represented were able to express their voices as part of this Inquiry. Below is the headnote from a reported decision of the Royal Court permitting the children to give disclosure of valuable reports to the Inquiry. (The children’s report is in fact quoted with approval by the Inquiry & so turned out to be particularly helpful.)

For a summary as to why it is so important for children to be legally represented when they are the subject of legal proceedings see also the following article by Hanson & Corbett “The Voice of the Jersey Child”


[2015 (2) JLR 126]
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.
    The Minister opposed the disclosure of the reports and the publication and use of the reports previously disclosed. He submitted inter alia that disclosure was not justified because (a) the reports had not been tested in court; (b) the usual rules as to the use by a third party of documents within a civil claim applied, i.e. there was an implied undertaking that the documents would not be used for any other purpose by the other party or parties (there was a right of confidentiality in the relevant material); and (c) the court could override any such implied undertaking or right of confidentiality but the balancing exercise in the present case came down in favour of refusing the Inquiry’s request because (i) the terms of confidentiality under which the reports were created and disclosed must have led to an implied undertaking that they would not be used by the other party or a third party; and (ii) the Inquiry could obtain all of the information contained in the reports by other means, apart from the experts’ opinions which were not relevant.
    Held, ordering as follows:
    (1) The further expert reports would be disclosed to the Inquiry, subject to redaction and anonymization. The court had a discretion as to whether it should order disclosure of the reports. When deciding whether disclosure was justified, the court had to take into account the various competing interests, both public and private. The court would consider: (a) the welfare of the children concerned; (b) the welfare of other children generally; (c) the maintenance of confidentiality; (d) the importance of encouraging frankness; (e) the public interest in the administration of justice, and co-operation between judicial bodies and agencies concerned with child protection; (f) the public interest in the prosecution of serious crime; and (g) any material disclosure that had already occurred. The consent of the children to the disclosure of the information was also relevant, although not determinative. An undertaking of confidentiality would be implied in the present case because the proceedings involved sensitive information concerning the plaintiffs and had been structured so as to protect their privacy and safeguard their interests as publicity was likely to result in further harm to them. The material sought was relevant to the work of the Inquiry (this was not, however, the test for disclosure). Although the reports had been prepared for the purposes of the negligence claim against the Minister, much of their content dealt with matters which the Inquiry was obliged to investigate under its terms of reference. The fact that the evidence had not been tested in court did not affect its relevance and the Minister, as an interested party, would be able to make representations to the Inquiry as he thought fit. Disclosure of the reports was not prevented by confidentiality; the plaintiffs’ identities could be
protected by anonymization and redaction. Furthermore, although much of the sensitive material in the reports had been produced by the Minister under the requirements of disclosure in the negligence proceedings, that information would in any event be available to the Inquiry in its original form. Disclosure was in the interests of the plaintiffs, as demonstrated by the fact that two of them had stated that they wished the reports to be disclosed, and disclosure posed no risk to their welfare as the reports would be carefully anonymized and would also be subject to the Inquiry’s protective procedures. Disclosure was in the interests of children generally. The Inquiry had a public function of great importance: the furtherance of child protection in Jersey. Co-operation between the various agencies concerned with child welfare was important. It would be contrary to justice for information relevant to the subject matter of the Inquiry to be withheld from it. The court paid full regard to the importance of encouraging frankness in such cases. As the earlier reports had already been disclosed to the Inquiry without objection, it would be unsatisfactory and potentially misleading to refuse disclosure of the later reports. For all these reasons, the balance came down firmly in favour of disclosure of the reports, suitably anonymized (paras. 37–64).
    (2) No restrictions would be placed on the Inquiry’s use of the reports, as they would be redacted before being given to it, and it would also implement its own protective protocols and procedures. The Minister would, further, be able to make representations to it regarding the use of the reports. In an appropriate case, however, restrictions on the use of disclosed material might be justified in order to strike a balance between the public interest in disclosure and confidentiality (para. 65).
Cases cited:
(1)      Appleton v. Gallagher, [2016] E.M.L.R. 3; [2015] Fam. Law 1473; [2015] EWHC 2689 (Fam), dicta of Mostyn, J. considered.
(2)      C (A Minor) (Care proceedings: Disclosure)Re, [1997] Fam. 76; [1997] 2 W.L.R. 322; [1996] 2 FLR 725; [1996] 3 F.C.R. 521, dicta of Swinton Thomas, L.J. applied.
(4)      Prudential Assur. Co. Ltd. v. Fountain Page Ltd., [1991] 1 W.L.R. 756; [1991] 3 All E.R. 878, dicta of Hobhouse, J. considered.
(5)      XIn re, 2003 JLR 111considered.
(6)      X (Children) (Disclosure of Judgment to Police)Re, [2015] 1 F.L.R. 1218; [2014] EWHC 278 (Fam), considered.
(7)      X ChildrenRe, [2008] 1 FLR 589; [2008] Fam. Law 23; [2007] EWHC 1719 (Fam), considered.
T.V.R. Hanson for the plaintiffs;
D.A. Corbel for the defendant.