Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
One in four family lawyers contemplates leaving the profession, Resolution reveals
A quarter of family justice professionals are on the verge of quitting the profession as the toll of lockdown on their mental health becomes clear, the family law group Resolution revealed today,...
Family Law Awards adds a Wellbeing Award - enter now
This past year has been different for everyone, but family law professionals working on the front line of family justice have faced a more challenging, stressful and demanding time than most. To...
Pension sharing orders: Finch v Baker
The Court of Appeal judgment in Finch v Baker [2021] EWCA Civ 72 was released on 28 January 2021. The judgment provides some useful guidance on not being able to get what are essentially...
Eight things you need to know: Personal Injury damages in divorce cases
The “pre-acquired” or “non-matrimonial” argument is one which has taken up much commentary in family law circles over recent years.  However, the conundrum can be even...
Misogyny as a hate crime – what it means and why it’s needed
In recent weeks, the government announced that it will instruct all police forces across the UK to start recording crimes motivated by sex or gender on an experimental basis- effectively making...
View all articles
Authors

DISCLOSURE/CAPACITY/ADOPTION: RC v CC (By Her Litigation Friend, the Official Solicitor) and X Local Authority [2013] EWHC 1424 (COP)

Sep 29, 2018, 21:07 PM
Slug : disclosure-capacity-adoption-rc-v-cc-by-her-litigation-friend-the-official-solicitor-and-x-local-authority-2013-ewhc-1424-cop
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : May 30, 2013, 09:45 AM
Article ID : 102777

(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.

Categories :
  • Court of Protection
  • Judgments
Tags :
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from