About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Wednesday, 17 September 2008

Strategy meeting minutes

I have recently had cause to look at the thorny issue of disclosure of social services' documents and strategy meeting minutes in particular. The issue of document disclosure is also one which has been raised in much of the recent public commentary on the family justice system.

Two key judgments on disclosure are those of Charles J in Re R [2002] 1 FLR 755 and Munby J in Re L (Care Assessment: Fair Trial) [2002] 2 FLR 730In Re R, Charles J held that ‘It was rightly accepted that all parties are under a duty to make full and frank disclosure. Initially, this places a heavy burden on a local authority when presenting their case … it is also their duty … to confine issues and evidence to what is reasonably considered necessary for the proper presentation of the case. A proper presentation is, naturally, one that is fair and that has a proper regard to Art 6 of the Convention. That heavy burden arises in all cases where public law orders  are sought because of the nature of the proceedings.’ He later remarked that the requirement to protect confidentiality / public interest immunity was misunderstood. The starting point in considering disclosure is whether a document is relevant and necessary for the fair disposal of the case and he referred to the civil guidelines on relevance: a document will be relevant if it will be relied on by the party, it is adverse to his case, it is adverse to the other side’s case, it supports the other side’s case or it is required to be disclosed by a Practice Direction. He added that there are also human rights considerations which point to disclosure. He concluded that it could no longer be argued that social work records as a class were covered by public interest immunity and that any such arguments should be confined to history. If an attempt was to be made to justify non-disclosure the specific harm feared as a result of disclosure should be particularised. Local authorities & guardians should be more willing than they seem at present to exhibit relevant notes of conversations etc.

In Re L, Munby summarised the human rights considerations in the following terms: “First, that the fair trial guaranteed by Art 6 is not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process may involve breaches not merely of Art 8 but also of Art 6. ...If the watchword of the Family Division is indeed openness¬ – and it is and must be – then documents must be made openly available and crucial meetings at which a family’s future is being decided must be conducted openly and with the parents, if they wish, either present or represented. Otherwise there is unacceptable scope for unfairness and injustice, not just to the parents but also to the children." Later in the judgment he sets out the principles and practices of disclosure which he says should be adopted, many of which have now been incorporated into the PLO. The PLO makes specific reference to the need to disclose strategy meeting minutes.

The Working Together to Safeguard Children document deals with strategy meetings at para 5.54 ff. It sets out the purpose of such meetings and what they should consider. This includes a reference to the need to “determine what information from the strategy discussion will be shared with the family, unless such information sharing may place a child at increased risk of significant harm or jeopardise police investigations into any alleged offence(s); and determine if legal action is required.”

In relation to the pre-proceedings stage, the PLO says at paragraphs 10.2 & 10.3:

“10.2 The documents which the court will expect to see attached to the application form for a care or supervision order are set out in the Pre-Proceedings Checklist… The ..checklist should be used at the earliest opportunity as a guide to what documents the court will expect to see at the start of proceedings and should be filed with the application form. The Pre-proceedings checklist will promote good case preparation.

10.3 It is recognised that in some cases the circumstances are such that the safety and welfare of the child may be jeopardised if the start of proceedings is delayed until all of the documents appropriate to the case and referred to in the ..checklist are available. The court recognises that the preparation may need to be varied to suit the circumstances of the case. The court is likely to make directions relating to the preparation of any missing documentation at the start of the proceedings and at the first appointment. The court also recognises that some documents on the Pre-proceedings checklist may not exist and may never exist, for example, the section 37 report, and that in urgent proceedings no letter before proceedings may have been sent.”

The pre-proceedings checklist of documents to be disclosed from local authority files includes key LA minutes & records for the child including strategy discussion record.

My recent experience suggests that local authorities may not be aware of the need to disclose strategy minutes and the same applies to the other agencies involved such as the police. It certainly was not routine before the PLO for these minutes to be disclosed. Clearly there will be situations when it is important not to disclose them before certain actions have been taken to gather evidence or interview possible suspects. Strategy chairs may need to be reminded that the meeting itself should consider what should be disclosed and whether there is any time sensitivity and ensure it is recorded in the minutes. LA legal departments who do not already have one might also wish to consider having a policy or protocol to ensure that child protection professionals are aware of the need to disclose and to set out any steps that need to be taken before disclosure is made. When proceedings are imminent or gateway meetings are about to happen parents' representatives will not unreasonably expect to have these documents as soon as possible. It may be appropriate and necessary to withold documents on some occasions but the local authority must be able to give a good reason for having done so to the court.

No comments: