Practice and Procedure

RE R (CHILDREN) (2003)

PUBLISHED January 15, 2003

Where the judge had not given a formal judgment as to why the appellant's application for disclosure of his own psychiatric reports was refused, and the appellant had not been permitted to attend the hearing, there was undoubtedly an appearance of injustice from the way the hearing had been conducted.Appeal from the decision of HH Judge Downey dated 22 November 2001 to dismiss the appellant's application for disclosure of documents on the court file relating to proceedings involving his children. Following complaints of sexual abuse, the appellant's wife had left the family home with their two daughters and obtained a residence order. In March 1999, the appellant had been convicted of five counts of rape and six counts of indecent assault, and was sentenced to 10 years' imprisonment. The appellant's application for contact with his children was refused. In September 2001, the appellant applied for disclosure of certain documents used in the contact proceedings, and by letter set out the documents he wished to be disclosed, the purpose of the disclosure, namely for use in civil proceedings in the High court, for use in an application for permission to appeal against conviction, for inquiries to be made by the General Medical Council, and to obtain further medical opinion on his medical state. The appellant also set out the persons to whom the documents should be disclosed, which included professional bodies. The disclosure hearing took place in the absence of the appellant, who had been permitted to make only written representations. The appellant's wife was represented. The judge indicated that she was aware that the appellant was unhappy, but stated that she was inclined to dismiss the application. No formal judgment was given, and, in a letter to the appellant, the judge set out that she considered that it was not necessary or appropriate to order disclosure. The appellant argued that: (i) he had not been given a reasoned judgment; (ii) he had not received a fair trial; and (iii) the judge had not conducted a balancing exercise before exercising her discretion.HELD: (1) The relevant factors were the interests of the children, the good conduct of child cases in preserving the confidence of those who give evidence, the interests of the administration of justice, and the interests of children generally. (2) It was hard to see why the appellant should not be able to disclose psychiatric reports relating to his own condition to other psychiatrists for the purposes of a psychiatric examination. That was very far from disclosing reports to the authors of textbooks, as the appellant had intended. Any disclosure would have to be on tightly defined conditions. (3) It was clear that the exercise of deciding what should be disclosed, to whom, and under what conditions had not been carried out in the present case. There was undoubtedly an appearance of injustice from the way the hearing had been conducted.Appeal allowed. Matter remitted.