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Court Papers (Wrongful Disclosure)
12.30 pm
Mr. Dominic Grieve (Beaconsfield) (Con) (Urgent Question): Will the Solicitor-General make a statement on her Department's wrongful disclosure of court papers to the Minister for Children?
The Solicitor-General (Ms Harriet Harman): This question relates to the case of Re B, a minor, who was the subject of a care order on the ground that the child had been harmed by the mother, who was suffering from Munchausen's syndrome by proxy. The House will remember that I made a statement on 20 January after the Court of Appeal gave its judgment in the case of Angela Cannings. That was a criminal case where the mother was alleged to have been suffering from Munchausen's syndrome by proxy, but she was freed by the Court of Appeal.
The House will remember that I announced that we had set up a review to establish whether there were any other cases where the expert evidence had been central to the conviction and that such cases would be re-examined by the Director of Public Prosecutions and, if necessary, by the Criminal Cases Review Commission.
In answer to questions and expressions of concern about injustices that might have happened, not in the criminal courts but in the family courts, I told the House that the Minister for Children would be responsible for considering the implications of the Cannings case for cases involving care proceedings in the family jurisdiction. That statement in the House received widespread media coverage, which was understood by some to be an announcement that the Minister for Children was herself going to review individual family cases.
On 23 February, the Minister for Children made a statement to this House explaining that she was issuing guidance about how local authorities should proceed to review care cases where the basis of the evidence was expert testimony that the mother was suffering from Munchausen's syndrome by proxy. After the reporting of my statement to the House, I had a number of discussions with people raising the question of reviewing cases involving care proceedings. That includes, for example, discussions with some hon. Members and with the director of social services for Southwark, in my own constituency.
I was told by a solicitor, who happened to be my sister, that she was considering what action to take in respect of a client of hers who was seeking to challenge an order of the High Court taking the child into care. Part of the evidence had been that the mother was suffering from Munchausen's syndrome by proxy, about which I had been liaising closely with the Minister for Children. The solicitor in the case of Re B, a minor, sent me a copy of the High Court judgment, which I read. The names had been blanked out, so I did not, and do not, know the name of the child or the family. I simply looked at the court judgment.
I formed the view, on reading it, that it was likely to form the basis of a ruling by the Court of Appeal that could assist local authorities and others in understanding whether the issues raised in the Cannings case—a criminal case, of course—had any implications
for care cases in the family jurisdiction. I thought that the Minister for Children should be aware of the judgment.I understand that, subsequently, the Court of Appeal had itself notified the Minister for Children of the judgment in Re B, a minor, and offered to send her a copy of that judgment and all the papers, and invited her to consider whether she wanted to intervene in that case. It gave leave for the judgment and associated papers to be sent to her. Before I sent the judgment—without the names—to the Minister for Children, I sought legal advice from my office. I was advised that there was no prohibition on my doing so because the names had all been blanked out, and subject only to checking with the solicitor that there was no specific ruling in the case that prohibited disclosure. Having checked with the solicitor, I then sent the judgment to the Minister for Children.
When the local authority responsible for the care proceedings challenged my sending the judgment to the Minister for Children, the lawyer in my office who advised me reconsidered the question and decided that he probably was wrong, and that I should not have sent the judgment to the Minister for Children without a court order.
However, I can reassure the House that I acted on legal advice. I did not identify the child: I could not do so, in any event, as I did not know the child's identity. Also, in any event, the Court of Appeal subsequently asked the Minister for Children to consider whether she wanted to intervene in the case, and gave leave for the disclosure to her of all the papers in this case on 23 February.
Mr. Grieve: I thank the Solicitor-General for her statement, which has certainly helped to clarify what appeared in the press this morning. Does she agree, however, that it is an extremely unfortunate state of affairs when the Law Officers Department, which after all is supposed to advise the Government on the law, does not know the rules covering contempt of court and the confidentiality of documents? Does she also agree that, in such cases, it is not appropriate for Law Officers to pass responsibility on to those to whom they turn for advice, as their role and function must require them to take responsibility for their own actions in respect of documents that come into their possession? Will the Solicitor-General assure the House that the case is not another example of the gradual erosion of the principle of the confidentiality of documents, or of the Government taking the view that they have a right to anything that comes into their possession? That must be one of the inferences that could be drawn from how the documentation was handled.
A second question relates to the handling of cases involving Munchausen's syndrome by proxy under civil proceedings. The Solicitor-General will confirm that we were told that the matter would be reviewed by local authorities, according to guidelines set out by the Minister for Children. However, does not this episode highlight the fact that that system does not appear to be working properly? The Solicitor-General has, at least, intervened to pass documents to the Minister for Children that would allow her to intervene against a decision made by a local authority. Can the right hon. and learned Lady reassure the House about how the
process is working in practice? Are there other examples of local authorities being unwilling to co-operate or to act according to the guidelines laid down by her and the Minister for Children?These are important issues. I hope that the Solicitor-General can provide some proper reassurance.
The Solicitor-General: I am sure that I can give the hon. Gentleman that reassurance. It is not a question of not knowing the rules. I am very clear that I take responsibility for my actions in the case, and I remind the hon. Gentleman what the rules are. They state that it is a breach of the Children Act 1989 to do anything that identifies, or which would tend to identify, any child involved in any proceedings. I think that I have made it absolutely clear that it was not the case that I breached those rules.
Under the Administration of Justice Act 1985, a second prohibition prohibits some publications of proceedings in private. The question that arises at that point has to do with what constitutes a publication. The hon. Gentleman will know that that has been the subject of some considerable consideration by the courts. Therefore, this is not an open-and-shut case, in which the only question is whether the action taken was in breach of the rules. It is a question of how far the rules extend, but it is certainly absolutely clear that I was fully aware of the provisions of the Children Act 1989. I did not breach them and I did not identify the child involved.
One approach that I could have adopted, but did not, was to argue before the court that to send one copy of the judgment to a fellow Minister did not amount to publication within the meaning of the Administration of Justice Act 1985. That was an approach that I could have taken, but I left it. I am happy to accept responsibility, and I hope that I have made that clear.
The hon. Gentleman's second point concerned any erosion of the principle of confidentiality. There was no erosion of that principle, or of any other principle. The hon. Gentleman also made a wider point and implied that because I had discussions with my right hon. Friend the Minister for Children the system had not worked and that somehow I had intervened. The system did work. I became aware that a judgment by the Court of Appeal was forthcoming. As it happens, I took the same view as the Court of Appeal. It became aware that it was about to make a judgment that would have implications for the review by the Minister for Children. It thought that she should know about the case and it wrote to her. I became aware that the Court of Appeal was about to consider a case that might have implications for the review by the Minister for Children. I thought that she needed to know about it and, having taken legal advice and considered the legal issues myself, I sent her information about that case.
The hon. Gentleman would have more justification if he had said that on this important issue of the crossover between the civil and criminal jurisdictions, in cases involving Munchausen's syndrome by proxy, the left hand of Government does not know what the right hand
is doing. One Minister considered the criminal issues and another considered the family issues. All such cases involve a lack of confidence in and a fresh consideration of Munchausen's syndrome by proxy and, therefore, the primary responsibility for the family jurisdiction lies with my right hon. Friend the Minister for Children. I thought that it was right that she should see the case, and the Court of Appeal thought the same, separately. On that issue, it was a case of great minds thinking alike.
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