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(Court of Protection, His Honour Judge Cardinal, 8 May 2013)
The 20-year-old woman suffered from partial lissencephaply, cerebral palsy and a weakness on the left side of her body. She had epilepsy and was learning disabled. The woman was adopted when she was between 6 and 18 months of age but in recent years had indirect contact in the form of letters with her birth mother. When the adoptive parents separated indirect contact ceased and the birth mother did not know where the woman was now living.
The birth mother applied to the Court of Protection to recommence indirect contact, a course that was only permissible due to the woman's lack of capacity. The judge ordered the local authority to file a report by the clinical psychologist setting out the nature and extent of the woman's disabilities as well as an assessment of her capacity to litigate and to make decisions about contact with the birth mother. The Official Solicitor supported the local authority interim proposal for non-disclosure of the reports of the psychologist and the social worker. The local authority later changed its position to one of neutrality on the basis that the Official Solicitor, as the woman's litigation friend, was better placed to take up the issue.
The Official Solicitor now agreed to disclosure of the psychological report albeit in a redacted form but resisted disclosure of the social work evidence.
In principle, cases should proceed on the basis of disclosure but any presumption in favour of such disclosure had to be tempered by the court's paramount duty to address the best interests of the person and the need to weigh up the Article 6 and 8 rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 engaged in answering the question as to what must be disclosed.
The redacted psychological report gave a detailed picture of the woman's intellectual abilities, set out up to date psychometric tests and their results, and drew careful conclusions about her wishes and feelings as to contact. If the whole of the psychological report were disclosed then it would reveal the whereabouts of the woman and the psychological services with which she was engaging and there was nothing in that report in full which assisted the birth mother any further but that it potentially invaded the woman's present private life. The social work reports revealed detailed private information about the woman and it was not necessary for the birth mother to have access to them.
At this stage it was right for the mother to have access to the redacted psychological report and for her counsel to see the social work evidence on the proviso that the information would not be shared with the mother. The Art 8 considerations plainly pointed in favour of non-disclosure in protecting the woman's right to private and family life with her father with whom she now lived.
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