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High Court judge grants permission for challenge to non-disclosure of overview report of serious case review

The High Court has granted permission for a challenge to non-disclosure of a report on a child who committed suicide, in a case in which two Welsh public bodies have each argued that the other is responsible for withholding it.

His Honour Judge Jarman QC, sitting as a judge of the High Court, said in Pollock, R (On the Application Of) v CYSUR: Mid and West Wales Safeguarding Children Board [2022] EWHC 1899 (Admin) that the claimant could challenge CYSUR: Mid and West Wales Safeguarding Children Board over this.

The claimant had applied to CYSUR to disclose the overview report of the serious case review into the death in 2012 of Child M.

Its refusal was communicated to her by Pembrokeshire County Council on the basis that it was required to treat the relevant records as its own, the court heard.

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HHJ Jarman noted there were 11 grounds of challenge, “ranging from unpublished or unlawful policy, inadequate reasons, irrationality, failure to apply guidance, and fettering of discretion, to breach of articles 2, 8 and 10 of the ECHR”.

CYSUR said the decision not to release the report was made by the council having considered the recommendations from agencies represented on the former Pembrokeshire Local Safeguarding Children Board and said it lacked any discretion to disclose it.

Pembrokeshire though said the decision to withhold the report was made by a sub-group of CYSUR.

HHJ Jarman said: “The claimant is thus faced with two public bodies each saying that the decision was made by the other, although her primary case is that the decision was made by CYSUR.”

Counsel for the claimant said the court should determine in order: who took the decision not to disclose; was the claim brought in time; should time be extended; and should the claimant be allowed to amend her grounds.

HHJ Jarman said: “On the limited documentation before me, in my judgment, it was CYSUR who made the decision.”

He said both CYSUR and the council could have refused to deal with Ms Pollock’s request on the basis that previous requests had been refused.

“However, it is clear from the briefing paper that that is not what CYSUR decided to do,” the judge said.

"It is clear that such previous requests were recognised, but that it was considered that that did not absolve CYSUR of a duty to consider the request in full in light of any new relevant considerations.”

This meant its most recent decision was a fresh one and so Ms Pollock’s claim was within time.

Pembrokeshire submitted there were no issues of public interest, but HHJ Jarman said: “In my judgment the death of a child and whether lessons can be learnt are matters of public interest.”

He added: “The reliance on confidentiality when a child has died and when it is acknowledged that there is a new era of transparency gives arguable grounds. In my judgment these are important issues.”

The judge said the matter should proceed to a full review by the court and although he would not limit permission to specific grounds, consideration should be given to a more focused approach at the substantive hearing.

Mark Smulian

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