Of the ‘anxious scrutiny’ of European Convention 1950 proportionality required of the Board and by him on judicial review, Sir James said:
' … Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X's welfare.'
He did not give F the opportunity to go away and plead his permission application more fully in terms of any Convention rights. He rejected there being errors of law and attempted no ‘anxious scrutiny’ beyond the above. Errors of law
Three barristers appeared before the President. F appeared in person. There is no evidence that Sir James’s attention was drawn to the following particular areas of law. Together with the brief scrutiny given to Convention issues these question of law might have justified the grant of permission to F to pursue his application. If so, subject to means, F might have been entitled to legal aid representation (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s10).(1) Disclosure in care proceedings
The care order was made on 17 January 2012. The ‘executive summary’ was completed six months earlier. Insofar as it was available to the local authority it must have been subject to disclosure (ie though not necessarily to production) in the care proceedings. Yet its production in the care proceedings (when F had legal representation?) was not sought, it seems. Either the local authority could have applied for, or the judge ordered, public interest immunity or its confidential status should have been claimed. If only limited production was to be available then principles such as those applicable on partial disclosure in Re M (A Minor)(Disclosure of Material)  2 FLR 36
, HL should have been considered by the care court.(2) ‘Local authority’
The judge found that the LSCB and the local authority are separate bodies for party status and judicial review purposes. However, as a matter of fact it is ‘the local authority’ which is responsible for setting up LSCBs (CA 2004, s 13(1): ‘Each local authority… must establish a [LSCB] for their area’); and it is the same body which is the applicant in care proceedings (CA 1989, s 32(1)). The child in the care proceedings was also the subject of the report.(3) ‘Functions’ of the LSCB
Sir James Munby P that the functions of LSCBs are limited to what is provided for in ‘statutory guidance’ under CA 2004, s 16(2) (Re X
para ). Of that ‘statutory guidance’ he referred to Working Together to Safeguard Children
(March 2010). His attention does not seem to have been drawn to the fact that by the time F made his application (May 2014) a March 2013 version of Working Together
applied. This specifically refers to publicity for reports, albeit in an oblique way (Chapter 4):
' From 2013 there will be a national panel of independent experts to advise LSCBs about the initiation and publication of SCRs. The role of the panel will be to support LSCBs in ensuring that appropriate action is taken to learn from serious incidents in all cases where the statutory SCR criteria are met and to ensure that those lessons are shared through publication of final SCR reports …'
The President treats Working Together
as being guidance under s 16(2). The above para  is not conclusive on publication, but its meaning and effect on F’s case should perhaps have been considered by the High Court?Legal implications of a decision in the family court
This case, it is submitted, could have been treated as an application under FPR 2010 Part 19 or as an application interim to the care proceedings (FPR 2010 Part 18); but in any event the full legal implications of the modern law could perhaps have been permitted to F – Convention rights, the relevance of disclosure and the 2013 Working Together
. All this is not to say that the President should necessarily have allowed a review of the LSCB decision-making. It does suggest that there may have been more errors of law – a definition of ‘local authority’, and the functions of, and guidance to, LSCBs – antecedent to the LSCB decision which he was being asked judicially to review.