Material considerations

What should an authority do if it is asked to disclose material from an Individual Management Review as part of a libel or negligence claim? David Maggs and Sarah Erwin-Jones analyse this thorny issue.

This year will see the fourth anniversary of the death of Baby Peter. But the legal proceedings and consequent social work implications arising from his death show no sign of abating.

The court visited these issues most recently when considering the libel action brought by one of the social workers, Sylvia Henry, against the publishers of the The Sun and the News of the World, News Group Newspapers Ltd (NGN).

Facts

Sylvia Henry alleges that NGN’s coverage placed the blame for the killing of Peter on her gross and disgraceful incompetence in returning Peter to his mother; whereas in fact it was her judgment that the local authority should apply for an Emergency Protection Order (EPO). She argues that an EPO was not obtained because it was not supported by her more senior colleagues.

NGN was seeking documents from the local authority, arising out of the Individual Management Review (IMR) following Peter’s death, that they considered would shed light on the role of Sylvia Henry and her colleagues in the decisions about Peter in the relevant period.

Background

A Local Safeguarding Children Board (LSCB) is a multi agency body that is tasked with conducting a Serious Case Review (SCR) when a child dies and abuse or neglect is known or suspected to be a factor in the death. The SCR looks at the involvement of organisations and professionals with the child and the family.

As part of the process organisations that were involved with the child or the family complete an IMR. The aim of IMRs is to look openly and critically at individual and organisational practice and at the context within which people were working to see whether the case indicates that improvements could and should be made and, if so, to identify how those changes can be brought about.

NGN were seeking the records of interviews of Sylvia Henry and other staff of the local authority that were carried out as part of the IMR process. The local authority accepted that the records would either support or adversely affect the case of Sylvia Henry or NGN. The principal argument centred on whether the disclosure of the records should be withheld because disclosure would damage the public interest.

Whilst the confidentiality of the child and family can generally be safeguarded by appropriate redaction of confidential information; the local authority argued that the efficacy of the IMR process would be threatened if full and open participation of interviewees was inhibited by concern about possible future disclosure.

The Judge considered that he had to weigh the different interests in the balance and form a judgment that was specific to the case before him.

The Judge decided that the human rights of Sylvia Henry and her senior colleagues were engaged because if disclosure was not given the libel claim might be decided on a false basis with very serious consequences for the local authority staff involved.

Whilst the death of children at the hands of their carers is not an exceptional occurrence, few such cases give rise to libel proceedings. The Judge considered that an order for disclosure in this case would therefore have a limited impact on interviewees in future IMR interviews.

What was sought was not the whole of the IMR and interviews but only relevant parts. The parties could apply to the court to limit the extent to which the documents would be available to the public and the court would be under a duty to keep this under review pursuant to the Human Rights of those involved.

The Judge, therefore, ordered the disclosure of the record of interviews that formed part of the IMR.

SCRs are not inquiries into how a child died or was seriously harmed, or into who was culpable. These are matters for coroners and criminal courts, respectively, to determine as appropriate. But disclosure of SCR and IMR documents is often sought following the conviction of the person primarily responsible for the death when there are allegations of negligence on the part of individuals, at one of the agencies involved with the child or the family, whose conduct is said to have failed to safeguard the child.

Whilst libel actions arising from the death of a child where abuse or neglect is a factor are rare, negligence claims are becoming increasingly common. The government has introduced the publication of full, rather than just summary, SCR reports. The court in this case has permitted disclosure of some of the documents arising out of the IMR.

Implications

If you get a request for disclosure of IMR material, perhaps in respect of a libel claim but more probably as a prelude to or in the course of a negligence claim, you should consider:

• Which members of staff (or former members of staff) have an interest in whether the material is disclosed?
• Were any assurances given to interviewees in respect of future disclosure?
• Is the material really going to support or adversely affect the case of one of the parties or is it no more than a judgment on practice made from the perspective of a counsel of perfection?
• Have you disclosed the material sought in any other proceedings or context?
• What is the minimum that can be disclosed?

Whether the material should be disclosed will depend on a balancing exercise between the various interests. The local authority may, in order to preserve its impartiality between those various interests, ultimately have to leave that balancing exercise to the court.

David Maggs and Sarah Erwin-Jones are partners at Browne Jacobson. David can be contacted on 020 7337 1005 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. Sarah can be contacted on 0115 976 6136 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..