LAW REPORT : Confession in care case confidential

Oxfordshire County Council v P (a minor).

Family Division (Mr Justice Ward).

20 January 1995.

Admissions by a mother about her child's injuries to the guardian ad litem in care proceedings were confidential and could not be disclosed to the police without the leave of the court.

Mr Justice Ward terminated the appointment of the guardian ad litem.

Care proceedings were commenced and the guardian ad litem appointed under the Children Act 1989 when a 12-week-old baby was referred to hospital with non-accidental injuries.

The mother made admissions to the guardian ad litem who informed the social services department and the court in writing. The social services department informed the police who obtained a witness statement from the guardian ad litem attesting to the admissions.

The Crown Prosecution Service wished to rely on the guardian ad litem's statement to prove criminal charges against the mother. The mother was now reluctant to be fully frank in the care proceedings and asked for the guardian ad litem to be removed.

Frances Judd (County Solicitor) for the council; Jonathan Baker (Quiney Chamberlain) for the parents; Patrick Smith (solicitor) for the guardian ad litem; Richard Bond (Official Solicitor) as amicus curiae.

MR JUSTICE WARD said that under the Children Act and rules, the guardian's report and the guardian's letter to the court were protected from disclosure.

There was a duty on all parties to make full and frank disclosure of all matters material to the welfare of children whether those matters were favourable to or adverse to their own particular case. The parties and their advisers were under a duty to thecourt to be full and frank in dealing with the check-list factors in section 1(3).

Section 98, which dealt with self-incrimination, should be construed so that the oral admission made by the mother to the guardian ad litem must be privileged because it was made to the guardian ad litem who was appointed by the court and under a duty toinvestigate for the court and was therefore an admission made in care proceedings.

It was in the public interest that candour be encouraged. There was clear authority that the proceedings in wardship were confidential and confidentiality covered reports, statement, proofs of evidence, documents filed and evidence given. The same treatment should be accorded to proceedings under the Children Act.

Therefore, the police were wrong to seek to make use of the admissions made to the guardian ad litem and the guardian ad litem was wrong to make a witness statement without either or both of them first having sought the leave of the court for that disclosure to be made. The mother spoke to the guardian ad litem in confidence. The confidentiality was not the guardian ad litem's to dispense with: the confidentiality was the court's. Leave should be obtained by guardians or the police if ever they were in doubt.

It was hoped that a practice could be quickly developed permitting the free exchange of information between the social services and the police but on a basis that the information was treated by the police as confidential and might be used for investigation into criminal offences but not as evidence in any criminal proceedings that might follow, and if the police wished to use as evidence information arising in care proceedings, they must seek the court's leave.

Ying Hui Tan, Barrister