1 Ch. CHANCERY DIVISION. 381 point and, as I have said, apart from authority, I would myself 1962 have been inclined to hold that either form of words would HUNTER'i authorise the imposition of protective trusts, though not the WILL TRUSTS, creation of an immediate discretionary trust. But, having regard In re. 8 to the decision in In re Morris's Settlement Trusts, and in par• Cross J. ticular to the passage in the judgment of Jenkins L.J., which I have just read, I must hold that the trust in question here is invalid. There was yet another point • taken by the trustee in bank• ruptcy against the validity of this particular trust, namely, the fact that, at the death of Julia Harris; when it came into opera• tion, it was not a trust for the payment of income to Kenneth Harris during his life until forfeiture but an immediate discre• tionary trust. In the circumstances, it is not necessary for me to express any view one way or the other as to that point.

Declaration that the discretionary trust incorporated in the appointment in respect of the income of the two fifth parts >of Julia's share in the testator's residuary estate was invalid as con• stituting a delegation of the power of appointment.

Solicitors: Moon, Gilks & Moon; Kingsford, Dorman & Co. for Kingsford, Flower & Pain, Ashford, Kent; Tarry, Sherlock & King. V. A. M. s [1951] 2 All E.E. 528.

In re K. (INFANTS). 1962 July 3. Ungoed- Infant—-Ward of court—Evidence—Confidential reports—Statements by Thomas J. guardian ad litem—Official Solicitor—Disclosure—Whether parties entitled to disclosure—liight of court to see child or parents C. A. privately—Purpose and practice. 1962 July. 25, Natural Justice—Opportunity to meet charge—Disclosure of evidence— 26, 27; Bight of party to see and challenge all information put before Oct. 30. judge—Ward of court—Confidential report by Official Solicitor— Upjohn, Fundamental concept of British justice. Davies and Russell L.JJ. Official Solicitor—History and functions—Statement by—Whether on CHANCERY DIVISION. [1963] oath—Discretion of judge—Confidential report—Need for disclosure to parties—Guardian ad litem of ward of court. The mother of two infant children applied by originating sum• mons that the infants be made wards of court and for custody, care and control, and access. The father was a respondent to the applica• tion, there being conflict between the parties as to custody, etc. On the issue of the summons, the infants became wards of court and the master subsequently ordered that they be joined as respondents, and that the Official Solicitor be their guardian ad litem. In due course, the Official Solicitor lodged a statement of facts in which he submitted that the mother should take the infants to be seen by a named medical specialist, and at the same time he lodged a confiden• tial report. The master ordered that the mother take the infants to the specialist and subsequently the Official Solicitor lodged a further statement accompanied by a further confidential report annexed to which were reports of the specialist. Both statements but neither of the confidential reports were disclosed to the parties. The mother contended, on a preliminary point, that she was entitled as of right to see the whole of the reports of the Official Solicitor, including the confidential reports and medical reports annexed thereto. Ungoed-Thomas J. rejected the mother's contention. On appeal by the mother: — Held, allowing the appeal, (1) that the determination of the court upon the question as to what was best to be done for the welfare of the infants was a judicial inquiry (post, pp. 404, 408, 415). In re Fynn (1848) 2 De G. & Sm. 457 and Beg. v. Gyngall [1893] 2 Q.B. 232 ; 9 T.L.R. 471 applied. (2) That it was fundamental to any judicial inquiry and a fundamental concept of British justice that a properly interested party must have the right to see all the information put before the judge, to comment on it and, if needs be, to combat it (post, pp. 405, 406, 408). (3) That, accordingly, before a j udge took into account a confiden• tial report submitted by the Official Solicitor it must be disclosed to the parties if they so desired (post, pp. 407, 414, 417, 418). Per Upjohn L.J. There is nothing in the history of the office of the Official Solicitor, nor in his status, nor in the practice of the court, which entitles a judge to act on his confidential reports with• out disclosing them to the parties, and in this respect the Official Solicitor is in no better position than any other guardian ad litem (post, p. 399). Per Davies L.J. The undesirability of and the dangers inherent in the receipt by the court of secret or confidential reports are so great as entirely to outweigh the disadvantage that might occasion• ally arise from full disclosure. The court is not entitled to receive secret information, unless, by statute or otherwise, it is expressly authorised so to do (post, p. 414). Per Upjohn and Russell L. JJ. In exceptional cases only, when he believes the disclosure of the information may be harmful to 1 Ch. CHANCERY DIVISION.

the infant, should the Official Solicitor submit confidential reports in infancy matters to the judge (post, pp. 407, 418). Per Russell L.J. In cases such as this the proper practice would be for the judge to state his view that disclosure to the parties would be harmful to the ward, and disclose in the first instance to their legal advisers (post, p. 418). Per Upjohn L.J. The right of the judge in infancy cases to see in private the infant or the parents, which should be exercised sparingly (and very sparingly indeed in the case of parents), is not for the purpose of eliciting new facts but to discover their personalities and outlook (post, p. 406). Per Davies L.J. The objects of so interviewing a child are, • inter alia, to form some idea of its character and personality and to obtain (though by no means necessarily follow) his views as to what course the court should take (post, p. 411). Decision of Ungoed-Thomas J. (post, p. 384); [1962] 3 W.L.R. 752; [1962] 3 All E.R. 178 reversed.

APPLICATION. On October 28, 1960, the mother of two infant children,, a boy born in June, 1952, and his sister born in July, 1953, applied by originating summons that the infants be made wards of court, and for orders, inter alia, for custody, care and control, and access. The marriage of the mother and father had taken place in Decem• ber, 1951. In February, 1960, the mother had left the father, taking the children with her, and they had remained with her. The mother made the father and the children respondents to the summons and when the matter came before the master he directed that the children were not to be served with the proceed• ings. Evidence was filed by the parents in the usual way upon which the master considered that it was a case in which an order for the appointment of a guardian ad litem of the children should be made, they already technically being parties. On July 21, 1961, the Official Solicitor was appointed. The Official Solicitor made inquiries and interviewed both parents and the children and on October 23, 1961, he made a report by way of a statement of facts to the court in which he stated that before he could make any recommendations he felt the need of medical evidence. He submitted that the mother should be directed to take the infants to see a named qualified medical practitioner in psychiatry. That statement of facts was communicated to both parents and no objection was taken to it at the hearing of the appeal. The statement of facts was accom• panied by a confidential report by the Official Solicitor to the court which was not disclosed to the court at the hearing of the appeal or to either parent. On November 23, 1961, the master 384 CHANCERY DIVISION. [1963]

1962 made an order for the children to attend the named doctor recom- K. (INFANTS), mended by the Official Solicitor. The children, with their mother, -f" re. attended the doctor on December 13, 1961. The doctor also saw the father on January 4, 1962, and the mother again on January 31, 1962. The Official Solicitor made a further statement of facts on February 7, 1962, which, after briefly setting out those visits to the doctor by the parties, recommended: (a) that care and control of the infants be given to the mother on condition that she brought them to see the doctor at six-monthly intervals until further order; (b) that the infants continued to be educated at their present schools until further order; (c) that the father be allowed access to the infants every other Sunday between the hours of 2 p.m. and 7 p.m. or such other times as the mother and father might mutually agree. That statement of facts which was disclosed to the parents was accompanied by a further con• fidential report by the Official Solicitor to the court of the same date which was not disclosed to the parents. To that confidential report were annexed reports by the doctor in the form of letters addressed to the Official Solicitor. The summons was partly heard in chambers. Ungoed- Thomas J. read the confidential reports (and annexures) by the Official Solicitor but decided that he ought not either completely to disregard them in reaching his conclusion nor to make a full disclosure of them to the mother personally. It was contended for the mother as a preliminary point that she was entitled as of right to see the whole of the reports of the Official Solicitor, including the doctor's reports annexed to them. Ungoed-Thomas J. adjourned the matter into open court for judgment on the preliminary point.

N. Browne-Wilkinson for the applicant mother. Mark Nesbitt for the respondent father. Official Solicitor as guardian ad litem. Cur. adv. vult.

UNGOED-THOMAS J. This is an infant case which I have partly heard in chambers. A preliminary point of considerable general importance has arisen, and I have adjourned the matter into open court to give judgment on it. It raises the question how far such a case is subject to the ordinary rules of evidence. I will only refer to the facts in so far as they relate directly to this question. 1 Ch. CHANCERY DIVISION. 385

This is an application by the mother of two infants aged 10 1962 years and 9 years, begun by originating summons and entitled in K (INFANTS), the usual way " In re named infants," and " In re the Guardian- In re- "ship of Infants Acts, 1886 and 1925," and "In re the Law Ungoed- " Beform (Miscellaneous Provisions) Act, 1949." The summons °H^. asks that the infants be made wards of court and for orders, inter alia, for custody, care and control, and access. The infants have been, since the issue of the originating summons and are now, wards of court. The only original respondent was the father, and there is a conflict between the father and the mother over custody, care and control, and access. After some evidence had been filed, the master on July 27, 1961, ordered that the infants be joined as respondents, and autho• rised that the Official Solicitor be made their guardian ad litem, which he duly became. It is the well-established practice for the Official Solicitor in such cases as this to lodge with the court two different categories of documents made by him, first, " statements "of facts," which are disclosed to the parties, and secondly, " reports," which are not so disclosed, except to the extent that the judge may decide at the hearing. In this case the Official Solicitor, on October 24, 1961, lodged a statement of facts in which he stated that he had interviewed the mother, the father, and the two infants, and submitted that the mother be directed to take the infants to a named medical specialist. At the same time the Official Solicitor lodged a report. On November 23, 1961, the master ordered the mother to take the children for an interview with this specialist. On February 7, 1962, the Official Solicitor lodged a further statement of facts in which he stated that the mother attended upon the doctor with the infants on December 13, 1961, and that the doctor also saw the father on January 4, 1962, and the mother again on January 31, 1962. The Official Solicitor lodged a further report on the same day as the further statement of facts, namely, on February 7, 1962, and this further report, in accordance with established practice, had annexed to it reports by the doctor in the form of letters addressed to the Official Solicitor. Both the statements of facts were disclosed to the parties, but neither of the reports was so disclosed. From time to time there has been difficulty as to the extent to which a judge should pay heed to the Official Solicitor's undis• closed report, but this has usually been surmounted by some such practical, common-sense method as a limited disclosure or the disregarding of the report. The difficulty in this case has become 386 CHANCERY DIVISION. [1963]

1962 unavoidable because the mother is not prepared to accept any K. (INFANTS), disclosure other than complete disclosure to herself personally, In re. anQ I do not consider that I should, in the circumstances of this Ungoed- case, either completely disregard the reports or make a complete oma9 ' disclosure of them to the mother personally. In these circumstances, counsel for the mother submitted that she was entitled as of right to see the whole of the reports of the Official Solicitor, including doctor's reports annexed to them. In the course of argument the proposition was formulated that in any infant case there is no place for any confidential report by the Official Solicitor or anyone else on any matter in which a conflict is involved, for example, between the parents, but only for evidence on oath in which the deponents are liable to cross- examination. This involves, on matters of conflict, first, the abolition of any undisclosed confidential report to the court; secondly, the limitation of evidence available to the court to evidence on oath within the ordinary rules of evidence; and thirdly, the liability of the deponent to cross-examination. The foundation of this submission was that in contested cases the court was acting as a court of law trying contested issues between parties and was, therefore, subject to all the ordinary rules of evidence. The nature of the jurisdiction is, therefore, at the very root of the submission. The jurisdiction regarding wards of court which is now exercised by the Chancery Division is an ancient jurisdiction deriving from the prerogative of the Crown as parens patriae. It is not based on the rights of parents, and its primary concern is not to ensure their rights but to ensure the welfare of the children. Although it is an ancient jurisdiction it serves a modern need, which has perhaps increased rather than diminished. However strong the rights of parents, those rights are only the counterpart of duties, and it is generally only the very failure of the parents to carry out those duties that occasions any wardship proceedings at all. Now the legislature, by section 1 of the Guardianship of Infants Act, 1925, has expressly enacted that where, in any proceedings before any court, the custody or the upbringing of an infant is in question, the court in deciding that question shall regard the welfare of the infant as the first and paramount consideration. A ward of court case is not, therefore, an ordinary lis between parties but partakes of an administrative character. The court will, of course, have regard to the rights of parents and to their views on the interests of the infant, and, accordingly, provision is made for their being parties to wardship 1 Ch. CHANCERY DIVISION. 387 proceedings. In some cases, as in the present case, the infant is 1962 also made a party, and a guardian ad litem, often the Official g (INFANTS), Solicitor, is appointed to represent him. This enables the court •fn re- to have someone whose sole concern it is to represent and safe- ungoed- guard the infant's interests throughout the proceedings. But omas these procedural arrangements do not change the nature of the jurisdiction. They do not convert a paternal jurisdiction into a mere conflict between parties. In the ordinary lis between parties, the paramount purpose is that the parties should have their rights according to law, and in such cases the procedure, including the rules of evidence, is framed to serve that purpose. However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose. Over a very large field in infant cases, the procedure and rules of evidence applicable to a lis between parties serve that purpose admirably and are habitually applied, but they should never be so rigidly applied as of inflexible right as to endanger or prejudice the very purpose which they should serve. Of course, in general, publicity is vital to the administration of justice. Disclosure to parties not only enables them to present their case fully but it provides in some degree the advantages of publicity; and it further ensures that the court has the assistance of those parties in arriving at the right decision. So when full disclosure is not made, it should be limited only to the extent essential to achieve the object of the jurisdiction and no further. In Scott v. Scott1 the House of Lords had before it the ques• tion how far nullity suits could be heard in camera; and in the course of his speech Lord Haldane L.C., whilst emphasising the need for publicity in general, referred to the exceptional nature of the court's jurisdiction over wards and lunatics. He said2: " There the judge who is administering their affairs, in the exer- " cise of what has been called a paternal jurisdiction delegated to '' him from the Crown through the Lord Chancellor, is not sitting " merely to decide a contested question. His position as an " administrator as well as judge may require the application of '' another and overriding principle to regulate his procedure in the " interest of those whose affairs are in his charge "; and again s: " In the two cases of wards of courts and of lunatics the court is " really sitting primarily to guard the interests of the ward or the

i [1913] A.C. 417, H.L. ' Ibid. 2 Ibid. 437. 388 CHANCERY DIVISION. [1963]

1962 " lunatic. Its jurisdiction is in this respect paternal and adminis- K. (INFANTS) " trative, and the disposal of controverted questions is an incident In re. " only in the jurisdiction. It may often be necessary, in order to Dngoeii- " attain its primary object, that the court should exclude the l'hornas .i. "public. The broad principle which ordinarily governs it there- " fore yields to the paramount duty, which is the care of the " ward or the lunatic." It is in accordance with the nature of the jurisdiction and the principles applicable to it which I have mentioned that I approach the submission in this case, and I come first to that part of the submission which suggests that on contested issues there should be no undisclosed confidential report. There are cases in which, in my view, it is in the interests of the infant's welfare that the judge should see him alone without being subject to the veto of any party or of any rule of procedure or evidence. It is also in the interests of the infant that the court, without being subject to any veto, should be able to obtain through a person appointed by the court for the purpose information, impressions or opinions which the judge cannot get for himself, or to give expert opinion which he is not qualified to form. There may be cases, too, in which the Official Solicitor or the infant's guardian ad litem rightly on his own initiative communicates with the court. Where matters thus come to the knowledge of the court which it would be contrary to the infant's welfare to disclose, it follows from the principle which I have mentioned that they should not be disclosed. My attention was drawn to the position of the Official Solicitor as an officer of the court, and I was referred to a passage from the judgment of Eigby L.J. in Harbin v. Mastorman.* It seems a possible view on the facts in this case that the Official Solicitor lodged the first statement of facts and report as a guardian ad litem and the second statement of facts and report under the master's direction as an officer of the court. If, however, the governing consideration is the nature and purpose of the jurisdiction, it follows, to my mind, that the extent to which a communication should be undisclosed depends not on the identity of its author but on the nature of its contents; not on who he is but on what he says. Confidential reports are not a peculiarity of the ancient ward of court jurisdiction. The need for them is apt to arise whenever the primary object of the jurisdiction is not the decision of a legal dispute between parties but is the welfare of a person in need of care. It arises in cases

" [1896] 1 Ch. 351, 371; 12 T.L.B. 105, C.A. 1 Ch. CHANCERY DIVISION. 389 of infants other than wards of court and in the case of mental 1962 patients. In such cases the need for confidential reports has been K rrNFANTS\ recently recognised by the legislature. Under section 109 (5) and In re. (7) of the Mental Health Act, 1959, it is provided that the reports Ungoed. of the Lord Chancellor's visitors on their visits to patients, includ- Thon"ls J- ing persons alleged to be incapable by reason of mental disorder of managing and administering their property and affairs, shall not be disclosed except to the judge and any person authorised by the judge to receive the disclosure. Usually in contested cases, but by no means invariably, disclosure is made but limited to the legal and medical advisers of the parties. The Adoption (High Court) Rules, 1959, r. 14, made under section 9 of the Adoption Act, 1958, provides that with a view to safeguarding the interests of the infant before the court the guardian ad litem shall investigate all circumstances relevant to the proposed adoption, and make a confidential report in writing to the court and, with a view to obtaining the direction of the court in any particular matter, may make such interim report to the court as appears to him necessary. In the Probate, Divorce and Admiralty Division a practice note issued on May 25, 1950, states that a judge may, on an applica• tion for custody or access, refer to a welfare officer for an inquiry and report as to the welfare of the children who are the subject of the application. Although in accordance with a circular of July 14, 1959, the welfare officer's report is disclosed to the parties, I learn from inquiries which I have made in that division that the welfare officer may also make an oral report to the judge which, in his discretion, the judge may or may not disclose to the parties. Thus the written report of the welfare officer is the counterpart of the statement of facts of the Official Solicitor in the Chancery Division, and his oral report is the counterpart of the report of the Official Solicitor. My conclusion on the first part of the submission in this case is that the mother is not entitled as of right to insist on the Official Solicitor's reports being disclosed to her. The disclosure is a matter of discretion for the judge. This leaves the question how far any disclosed statements should be made on oath or be the subject of cross-examination. There is, in my view, apart from any other consideration, no practical advantage to be gained by requiring officers of the court to make such statements on oath. Neither in the practice of the Chancery Division nor of the Probate, Divorce and Admiralty Division in infant cases, nor in the practice under the Mental Health Act, is such a requirement made. Nor do the statutory 1 CH. 1963. 25 390 CHANCERY DIVISION. [1963]

1962 provisions to which I have referred require that the reports for w K. (INFANTS), ^ich they provide should be on oath; they apparently con- In re. template the contrary. Nor does it seem always necessary to uiigoed- require that a doctor's report to the court should be on oath. The Thomas J. substance of the mother's claim on this question is not, to my mind, to have the statements on oath but to have the right to cross-examine on them. Very different considerations arise with regard to cross- examination. Questioning on disclosed statements may result in modifying, supplementing or confirming the statements. Clearly in any of these possible events it would assist the court in exer• cising its jurisdiction, and that to my mind is the proper test. In the parallel jurisdiction in infant cases in the Probate, Divorce and Admiralty Division, I understand that a doctor may be cross- examined on oath on his disclosed report. Also I understand that the parties may be invited to question the welfare officer on his disclosed report but not on oath, although, if there were a serious conflict involving his report, an application to cross-examine on oath would be entertained. This practice with regard to welfare officers accords with the parental, personal and informal nature of the jurisdiction over infants without disadvantage, whilst ensuring the benefits of cross-examination if a serious challenge to the statements disclosed were to arise. I consider that, similarly, questioning and if need be cross-examination on oath, should be allowed on such statements as should be disclosed in this case.

Adjourned into chambers.

The mother appealed, contending that she personally was entitled as of right to see all reports placed before the judge by the Official Solicitor, at all events unless he was prepared com• pletely to disregard their contents in reaching his conclusion, and she asked for an order accordingly..

[Reported by PHILLIPPA PRICE, Barrister-at-Law.]

C A. E. W. Goff Q.C. and N. G. H. Browne-Wilkinson for the 1962 mother. Although in infancy matters the court is exercising ZT~Z ~ jurisdiction as parens patriae it is still a judicial or quasi-judicial In re. ' function and therefore the ordinary rules of evidence and pro- cedure, or at least the rules of natural justice, should apply. The mother, as a party to the litigation and having rights which will be affected by the decision, is entitled to see a report by 1 Ch. CHANCERY DIVISION. the guardian ad litem. There is a lis between the parents which the judge has to decide. It is wrong in principle that the parties should not be allowed to see something which may affect the decision. [UPJOHN L.J. If you are right, can the judge see the infant in his private room?] The judge may see his own ward. It is quite another thing to see the report of a party. It would be quite wrong for the guar• dian ad litem to argue the case in the absence of the other parties. The Official Solicitor acts properly, but he cannot have personal knowledge and he is not in principle in any different position from any other guardian ad litem. [EUSSELL L.J. Has not the practice been for the judge to use his discretion as to what confidential reports he should consider?] It is not certain that there has been a settled practice. Although the interest of the infant is paramount, it is not the only consideration. The parents have no knowledge of what some psychiatrist or third person may say, and in a case such as this counsel is precluded from doing his duty for he cannot cross- examine and does not know the facts. Although there is a paren• tal jurisdiction, the judge is acting in a judicial capacity and there is a lis. The judge himself recognised the desirability of cross- examination in the case of disclosed reports.1 There are no authorities directly in point, but there are a number on analogous matters. In Scott v. Scott2 the facts were very different. The judge is not only exercising parental jurisdic• tion over the child but is dealing with the parental rights of the parents: see In re Thain3 and In re Carroll.4' There is a lis. The judge is bound to consider the rights of the parents: In re 0. (Infants)5 and In re L. (Infants).6 As to the jurisdiction over children in the Divorce Division, see Rossage v. Rossage.'' Strong reliance is placed on In re J. (An Infant),8 and see per Sachs J. in Hull v. Hull.9 In the Divorce Division the parties see the welfare officer's report but the judge may see that officer privately.

i Ante, p. 390; [1962] 3 W.L.E. • [1962] 1 W.L.E'. 886; [1962] 752, 757. 3 All E.E. 1, C.A. 2 [1913] A.C. 417; 29 T.L.E. 520, ' [1960] 1 W.L.E. 249; [1960] 1 H.L. All B.E. 600, C.A. 3 [1926] Ch. 676, C.A. 8 [1960] 1 W.L.E. 253; [1960] 1 * [1931] 1 K.B. 317. All E.E. 603. 5 [1962] 1 W.L.E. 724; [1962] » [1960] P. 118; [1960] 2 W.L.E. 2 All B.E. 10, C.A. 627; [1960] 1 All E.E. 378. CHANCERY DIVISION. [1963]

[DAVIES L.J. I never saw the welfare officer privately, I took the view that it was undesirable.] In adoption cases there is a special provision under the Adop• tion Act, 1958, for a confidential report. [Reference was made to In re J. S. (An Infant),10 In re E. (An Infant) " and In re B. (An Infant).12] Wardship cases are to be decided by the ordin• ary rules of evidence. A court is not entitled to receive secret information unless a statute so provides, as in the case of section 109 of the Mental Health Act, 1959. This express statutory provision is necessary in order to make the report confidential. This is a judicial or quasi-judicial process. Administrative tri• bunals must follow the rules of natural justice. [Beference was made to Board of Trade v. Rice,13 Errington v. Ministry of Health14 aud Dcnby (William) & Sons Ltd. v. Minister of Health.1*] N. C. H. Browne-Wilkinson following. Chancery judges undoubtedly have the right to see their wards in their private rooms. This is because the judge is dealing with his own ward and wants to see what type of child he or she is, and to ascertain the wishes of the child. The judge does not see the ward in order to ascertain facts. A judge could not send the Official Solicitor to report confidentially on the respective merits of two schools if there was a conflict. Peter Foster Q.C. and W. J. Tonge /or the Official Solicitor as guardian ad litem. In wardship cases in Chancery courts there is no lis and the parents have no rights. The Official Solicitor is in a special position unlike other guardians ad litem. The origin of the jurisdiction comes from the Crown acting as parens patriae. That jurisdiction has been delegated to the Lord Chancellor, and by him to the judges of the Chancery Division: see Chambers on Infants (1842), p. 10. The jurisdiction is from time immemorial based on the prerogative of the Crown over infants: see per Lord Bldon in Wellesley v. Duke of Beaufort.16 The judge is sitting as the sovereign: 1 Blackstone Com., 4th ed. (1770), p. 462. The Court of Wards was established in 1540 and formally abolished in 1660. It follows from Scott v. Scott 17 that there is no lis between

i° [1959] 1 W.L.E. 1218; [1959] .« [1935] 1 K.B.. 249; 51 T.L.E. 3 All E.E. 856. 44, C.A. n The Times, March 24, 1960. " [1936] 1 K.B. 337; 52 T.L.E. 12 The Times, March 25, 1960. 173, D.C. i3 [1911] A.C. 179; 27 T.L.E. 378, « (1827) 2 Euss. 1, 19. H.L. " [1913] A.C. 417, H.L. 1 Ch. CHANCERY DIVISION. the parties: see per Viscount Haldane L.C.1S It is of the court's own volition that the infant is made a ward of court, and the Official Solicitor does not make a report unless so requested by the court. The judge is acting as the parent of the child: see per Lord Esher M.E. in Beg. v. Gyngall.19 The parental rights are vested in the court. [Eeference was made to In re Fynn 20 and In re Thain.21~\ This is a parental jurisdiction and not a fight between parents as to their rights. In wardship proceedings parents do not assert rights: In re Andrews (Infants),22 and see In re 0. (Infants)23 and In re K. (Infants).2* Ah infant need not be made a party to an application for a wardship: In re An Infant.25 It is the duty of the Official Solicitor to assist the court in any investigation which may be needed: see Harbin v. Masterman 26 and Deutsche Bank v. Banque des Marchands de Moscou.21 The Official Solicitor's contribution may be on affidavit or by a state• ment of facts or by a confidential report not known to the parties. Though there is no statutory definition of his duties the Official Solicitor exists by virtue of section 119 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925. The origin of the office was in the Six Clerks whose duties descended on the Solicitor to the Suitors' Fund. Section 129 (1) of the Act of 1925 deals with the powers and duties of the Official Solicitor. It is a very old practice that if the court desires the Official Solicitor to make a report, then the judge's use of it is entirely in his discretion and it cannot be limited by principles of natural justice. The answer to opposition to that practice is " trust the judge." The advan• tages of a confidential report to the judge are that he is able to get information which he himself has neither the time nor means to procure, and he gets a second opinion. If the report is to be disclosed, the Official Solicitor will get less co-operation. It is the duty of counsel in infancy matters to make full disclosure to the court, but counsel may not be given the information which should be before the judge. The judge may see the Official Solicitor or a doctor, and whatever goes on in his private room is confidential.

is [1913] A.C. 417, 437. 2i [1962] 3 W.L.E. 752; [1962] 3 i» [1893] 2 Q.B. 232, 241. All E.E. 178; [1962] 3 W.L.E, 1517, 2» (1848) 2 De G. & 8m. 457. C.A. 2i T1926] Ch. 676. 25 [1950] Ch. 629; 66 T.L.E. (Pt. " [1958] Ch. 665; [1958] 2 1) 1212; [1950] 2 All E.E. 159. W.L.E. 946; [1958] 2 All E.E. 308. 26 [1896] 1 Ch. 351; 12 T.L.E. 105. 23 [1962] 1 W.L.E. 724; [1962] 2 C.A. All E.E. 10, C.A. 27 (1938) 158 L.T. 364, C.A. 394 CHANCERY DIVISION. [1963]

C A. The practice in lunacy, which is analogous, is now covered by 1962 *ne Court of Protection Eules, i960: see rules 30-33, and see, too, In re B. (An alleged Lunatic)26 and Roe v. Ma;.29 This is In re. ^he most analogous jurisdiction available. To summarise, the jurisdiction is the Crown's prerogative and is wholly unfettered. The court should not debar itself from obtaining all possible information relative to its decision. The infant's welfare overrides natural justice in this jurisdiction. Mark Nesbitt for the father. The argument for the Official Solicitor is adopted. The father wants the reports to be upheld and whether they are disclosed or not is subsidiary. He is pre• pared to forego his knowledge of the reports for the sake of the children. The judge has a discretion to withhold the reports. The foundation of the jurisdiction is that it is paternal and administrative; if this is not so, his case cannot be right. On these matters the court need not act on rules of evidence. The mere existence of a dispute between the parties does not give rise to a lis A lis requires three factors: the assertion by one party to proceedings of his legal rights against other parties, the deter• mination by the court of those rights, and the relief granted by the court in accordance with those rights. These factors are absent in wardship proceedings. B. Johnson & Co. (Builders) Ltd. v. Minister of Health™ throws light on the meaning of lis, and the judgment of Lord Greene M.E.31 applies broadly speaking to infancy cases. The same type of jurisdiction arises and the same procedure has been found necessary in mental health, adoption and divorce custody cases. [DAVIES L.J. Any welfare officer's report is disclosed to the parties. I disagree that there is a practice of the judge seeing the welfare officer.] Rossage v. Rossage,32 In re J. (An Infant)33 and Hull v. Hull3i do not touch the present problem because there the normal rules apply. The court is entitled to take into consideration the needs of the jurisdiction where the parents have failed to exercise their ordinary duties. Ultimately it comes down to " trust the " judge." It may be most harmful to the child to disclose to the parents the contents of the Official Solicitor's confidential reports.

28 [1892] 3 Ch. 194. 33 [1960] 1 W.L.B. 253; [1960] 1 29 [1893] P. 55; 9 T.L.E. 128. All E.E. 603. 3° [1947] 2 All E.E. 395, C.A. »* [1960] P. 118; [1960] 2 W.L.E. « Ibid. 396. 627; [1960] 1 All E.E. 378. " [1960] 1 W.L.E. 249; [1960] 1 All E.E. 600, C.A. 1 Ch. CHANCERY DIVISION.

R. W. Goff Q.C. in reply. A secret allegation may be entirely mistaken. In adoption cases the proposed adopting parents have no right to adopt or to disclosure. In wardship cases there is a lis and the parents have rights, though the courts have power to override them. It is a vicious suggestion that a parent can be deprived of rights because of a secret report which is not seen and which there is no opportunity of answering. The parents come into court with interests or claims which by statute the court is bound to consider. [Eeference was made to Wellesley v. Duke of Beaufort,35 Beg. v. Gyngall36 In re Carroll37 and In re Agar-Ellis.3S] It is contrary to the whole British idea of justice that a parent should be defeated by something which he or she has never seen. It is not disputed that the Official Solicitor can be asked to make inquiries, but his report must be disclosed and he cannot override the rules of evidence and of natural justice. The fact that the judge may see the ward is no justification for a secret report which may contain not only matters of opinion but information. The lunacy jurisdiction is paternal and protective and the nearest analogous jurisdiction is custody in divorce. Here there is a lis and the mother has a right which can only be overridden by following the proper judicial procedure. In B. Johnson & Co. (Builders) Ltd. v. Minister of Health39 it was a fundamentally administrative matter of public policy. Here there is a lis, the rights of parties will be affected, and Rossage v. Rossage i0 is relied on as showing that the ordinary principles apply. Cur. adv. vult.

1962. October 30. The following judgments were read.

UPJOHN L.J. This appeal from an order of Ungoed-Thomas J. on July 3, 1962, raises a short but extremely important point of principle in wardship proceedings in the Chancery Division. The question is whether the judge may receive, and treat as part of the evidence before him in reaching his conclusion, a confidential report submitted to him by the guardian ad litem of the infants without disclosing that report to any other of the parties to the proceedings in which the infants' interests are under consideration. However, it has not been suggested that it has ever been the

" (1827) 2 Kuss. 1. 3S (1878) 10 Ch.D. 49, C.A. 36 [1893] 2 Q.B. 232. 39 [1947] 2 All E.K. 395, C.A. " [19311 1 K.B. 317. o° [1960] 1 W.L.K. 249. 396 CHANCERY DIVISION. [1963]

C. A. practice (and certainly in my experience I have never known of 1962 it) for a guardian ad litem other than the Official Solicitor to submit to the court any reports not at the same time disclosed K. (INFANTS), In re. to the other parties to the proceedings, so that the real issue is whether the Official Solicitor, as guardian ad litem, has the right Upjohn L.J. to submit to the judge a confidential report containing possibly material facts or material opinions of experts which the judge may receive and take into consideration when determining the proper order to be made without disclosing it to any other party. The facts of this case can be stated extremely briefly for it comes before us as a matter of principle, and quite rightly only the barest outline of the facts has been put before us. The marriage of the mother and father took place in December, 1951. The elder child, a boy, was born in June, 1952, and a sister was born in July, 1953. In February, 1960, the mother left the father taking the children with her and to date they remain with her. On October 28, 1960, the mother instituted wardship proceedings making the father and the children respondents. It was in fact wrong to make the children respondents without order or direc• tion from the master or judge: see In re An Infant,1 where the proper practice was laid down. When the matter came before the master he therefore directed that the children were not to be served with the proceedings. Evidence was then filed by the parents in the usual way. The judge has not yet adjudicated thereon and so very properly none of it has been placed before us. Both parents concede that for the purposes of this appeal the merits so far as the parents are concerned are irrelevant; all we know is that the mother makes the most serious charges against the father which he totally denies. The nature of these charges is not known to us. [His Lordship stated the facts relating to the appointment of the Official Solicitor as guardian ad litem and to the reports, and continued: ] The mother appeals, contending that she personally is entitled as of right to see all reports placed before the judge by the Official Solicitor at all events unless he is prepared completely to disregard their contents in reaching his conclusion. That is the whole question before us. Whatever may be his strict right, the respondent father does not seek personally to see these reports. Before dealing with this question, I shall mention two points to dispose of them briefly. First it sometimes happens, and did

i [1950] Ch. 629; 66 T.L.E. (Pt. 1) 1212; [1950] 2 All E.B. 159. 1 Ch. CHANCERY DIVISION 397 so in this case, that having read confidential reports put before C. A. him by the Official Solicitor the judge declares his willingness to 1962 disclose to the parties' legal advisers the contents of the confi• K. (INFANTS), dential reports provided they are not disclosed to the parties In re. personally. This is an excellent and common sense practice and, Upjohn L.J. until this case, I have never known any objection to it, but when the judge suggested it in this case the mother took the objection that she was personally entitled to see the reports and instructed her counsel that he was not to see or read any such documents to which access was denied to her. This may seem surprising having regard to the disclosed recommendation of the Official Solicitor in his second statement of facts that the mother should have care arid control of the infants, but of course she is entitled to have this matter determined as a question of principle if she so desires. The second point is that if and when such reports are disclosed to the parties or to their legal advisers, it may appear that the reports are not on oath, and may contain annexed reports not on oath; the question arises as to the admissibility in evidence of such reports and as to the right to cross-examine thereon. The judge, towards the conclusion of his judgment, expressed the view 2 that a party was not entitled to insist in all cases, as of right, that disclosed statements be made on oath by the Official Solicitor or by other persons making a report. He did, however, think that questioning, and if necessary cross-examination, should be allowed on disclosed statements and on reports annexed thereto.3 As at present advised, I see no reason to disagree with the judge's observations on these matters. How far statements by the Official Solicitor should be on oath must be a question of discretion for the judge according to the circumstances of each case. In many cases, as the judge said, there would be no practical advantage in requiring such reports to be on oath; in other cases, however, if the Official Solicitor desires to report on primary facts, for example, as to the conduct of one of the parents, it may well be right that he should swear to such conduct or, if he cannot do so himself, should procure a sworn statement from some person who can strictly depose to such conduct. I entirely agree with the judge that questioning and, if necessary, cross-examination should be allowed on all disclosed statements and reports annexed thereto, and if necessary that

2 Ante, pp. 389, 390; [1962] 3 Ante, p. 390. W.L.B. 752, 757. 398 CHANCERY DIVISION. [1963]

C. A. the authors of such reports should be compelled to attend for cross-examination. 1962 However, I should point out that in this appeal these questions K. (INFANTS), In re. have not been fully argued for they do not yet arise as none of the confidential reports nor their annexures have as yet been Upjohn L.J. disclosed. On the main question we have heard a most interesting account from Mr. Foster, for the Official Solicitor, on the origin of the office of the Official Solicitor and of his practice, so far as it can be traced, in making reports to the court. He seems to have been the successor to the Solicitor to the Suitors' Fund and was first appointed eo nomine by Lord Hatherley L.C. in 1871. Since then this office has grown in stature and usefulness. The Official Solicitor performs many functions of great benefit and utility to this court and to the High Court. He is not in any way, of course, confined to questions of infancy. Two well-known examples were given to us by way of illustration. The first was the well-known case of Harbin v. Mastcrman,i where the court could see that the appeal was not brought in the true interests of the appellant and directed the Official Solicitor to make an inquiry into the matter, whence it appeared that the solicitor to the appellant was prosecuting the appeal to his own financial benefit. The second case was the Deutsche Bank v. Banque des Marchands de Moscou,5 where this court, from its knowledge of other cases concerning the liquidation of that bank in the Eussian Eevolution, thought that the bank might not be in existence but for the reasons appearing in the report it was not in the interests either of the petitioning creditor or of the respondent to take the point; the Official Solicitor was therefore directed to make an investigation and to put in evidence the facts as to the existence of the bank. These cases, though interesting, do not touch upon the point we have to consider, for there was no question of a confidential report being submitted by the Official Solicitor, con• fidential, that is to say, in the sense of being a report which might be acted upon or taken into account by the court without full disclosure to the parties concerned. So far as the practice of the court is concerned, it appears that it has been the practice since 1806 for the Official Solicitor or his predecessors to put before the court when requested a statement of facts (or state of facts as it was called), and no objection, of

* [1896] 1 Ch. 351; 12 T.L.E. 105, » (1938) 158 L.T. 364, C.A. C.A. 1 Ch. CHANCERY DIVISION. course, can be taken to that as it was disclosed to both parties. Eesearches on the making of confidential reports disclosed no more than that, so far as the Official Solicitor's records go, the preparation thereof in his office has been the practice since 1933, but the Chief Master informs us that to his knowledge the practice of submitting confidential reports to the court in infancy matters goes back at all events to the year 1928. However, neither the Chief Master nor the Official Solicitor have been able to help us (and this is not in the least degree sur• prising) upon the point whether it has been the practice of judges on receiving a confidential report to take it into account without disclosing it to the interested parties. It must always be remembered that the Official Solicitor, though an extremely important and highly respected officer of the court, who has his office in the Eoyal Courts of Justice, is nevertheless not part of the judiciary, such, for example, as a Chancery Master, who is the deputy of the judge and makes orders in the judge's name. For my part I can find nothing in the history of the office of the Official Solicitor, nor in his status nor in the practice of the court, which entitles the judge to act on his confidential reports and any statements thereto annexed without disclosing them to the parties to the proceedings. I can find nothing which places the Official Solicitor in a better position in this respect than any other guardian ad litem. It would indeed be strange if it were otherwise, for the right of the judge to receive such confidential reports would depend upon the chance that the case is one where it is thought right to appoint a guardian ad litem and the choice falls on the Official Solicitor. Liberty on the part of the judge to act on undisclosed con• fidential reports must therefore be justified, if at all, on more general grounds. The judge found support for the view that he could act on confidential reports without disclosing them to the parties by referring to proceedings in the Court of Protection (under the Mental Health Act, 1959) and in proceedings under the Adoption Act, 1958. In each case confidential reports are made and are not disclosed to the patient in the one case or to the natural parents or adopting parents in the other case. I cannot myself obtain any assistance from the practice in these cases, for in each case it is a requirement by statute or by rule that confidential reports are to be made and are not to be 400 CHANCERY DIVISION. [1963]

C. A. disclosed to the parties. With all respect to the judge's judg• 1962 ment, I would have thought that this tended against the argument that there was any inherent jurisdiction, when the court exercises K. (INFANTS), In re. the jurisdiction of the Crown as parens patriae, that confidential

Upjohn L.J. reports could be received, for in each case it has been thought necessary to make express provision for the reception of confidential reports. It appears, moreover, that in adoption proceedings the court has placed a narrow interpretation on its right to treat the con• tents of a confidential report, properly tendered to it under the Act and rules, as evidence upon which it could act: see the reports of two cases before Roxburgh J., In re E. (An Infant) & and In re B. (An Infant).'' In those cases Roxburgh J. decided that he was not entitled to look at these confidential reports for the purpose of deciding .whether a parent's consent to an adoption order had been unreasonably withheld. The grounds upon which the judge in this case decided that he was entitled to have regard to confidential reports and their annexures presented to him by the Official Solicitor without dis• closing them to other interested parties, and in particular the parents, may be quite shortly stated. In his judgment he pointed out8 that the jurisdiction regarding wards of court exercised by the Chancery Division is an ancient jurisdiction derived from the prerogative of the Crown as parens patriae. As he said,8 "It is not based on the rights of parents, " and its primary concern is not to ensure their rights but to " ensure the welfare of the children. Although it is an ancient " jurisdiction it serves the modern need, which has perhaps " increased rather than diminished. However strong the rights " of parents, those rights are only the counterpart of duties, and "it is generally only the very failure of the parents to carry out " those duties that occasions any wardship proceedings at all. " Now the legislature, by section 1 of the Guardianship of Infants " Act, 1925, has expressly enacted that where, in any proceedings " before any court, the custody or the upbringing of an infant is " in question, the court in deciding that question shall regard the " welfare of the infant as the first and paramount consideration. " A ward of court case is not, therefore, an ordinary lis between

6 The Times, March 24, 1960. 8 Ante, p. 386; [1962] 3 W.L.E. 7 The Times, March 25, 1960. 752, 754. 1 Ch. CHANCERY DIVISION. 401

" parties but partakes of an administrative character. The court C. A. " will, of course, have regard to the rights of parents and to their V36<2 " views on the interests of the infant, and, accordingly, provision

" is made for their being parties to wardship proceedings. In ' jn re " some cases, as in the present case, the infant is also made a Upjohn L.J. "party, and a guardian ad litem, often the Official Solicitor, is " appointed to represent him. This enables the court to have " someone whose sole concern it is to represent and safeguard " the infant's interests throughout the proceedings. But these " procedural arrangements do not change the nature of the juris- " diction. They do not convert a paternal jurisdiction into a mere " conflict between parties. In the ordinary lis between parties. " the paramount purpose is that the parties should have their " rights according to law, and in such cases the procedure, " including the rules of evidence, is framed to serve that purpose. " However, where the paramount purpose is the welfare of the " infant, the procedure and rules of evidence should serve and " certainly not thwart that purpose." The judge then went on to consider Scott v. Scott,9 to which I shall refer in a moment. Then, after discussing the right of the court to see the infant alone, he continued 10: " It is also in the ' interests of the infant that the court, without being subject to ' any veto, should be able to obtain through a person appointed ' by the court for the purpose of information, impressions or ' opinions which a judge cannot go to get for himself or to give ' expert opinion which he is not qualified to form. There may 'be cases, too, in which the Official Solicitor or the infant's ' guardian ad litem rightly on his own initiative communicates ' with the court. Where matters thus come to the knowledge of ' the court which it would be contrary to the infant's welfare to ' disclose, it follows from the principle which I have mentioned 'that they should not be disclosed." He concluded that the applicant, that is the mother, was not entitled, as of right, to insist that the Official Solicitor's reports be disclosed to her; disclosure was a matter of discretion of the judge. Mr. Foster, in his able argument in support of the judgment, drew our attention to a number of ancient reports and authorities which I do no more than mention because I accept at once his general thesis, which of course cannot be disputed, that the Chancery Division is exercising the jurisdiction of the Crown as

9 [1913] A.C. 417; 29 T.L.B. 520, i° Ante, p. 388; [1962] 3 W.L.E. H.L. 752, 756. 402 CHANCERY DIVISION. [1963]

C. A. parens patriae delegated to the Lord Chancellor and through him 1962 to the judges of the Chancery Division: see Chambers on Infants, (1842), p. 10, where there is an interesting historical account of the K. (INFANTS), In re. jurisdiction. See also a comprehensive statement of the matter by that great equity lawyer, Lord Eldon, in Wellesley v. Beaufort Upjohn L.J. {Duke of).11 Furthermore, I accept at once that in determining matters in wardship proceedings the court is not merely deciding a lis between two parties as in the ordinary contested action but is deciding what is the paramount benefit of infants. This again requires no lengthy recital of authority; it is to be found, of course, in section 1 of the Guardianship of Infants Act, 1925, and the well-known case of In re Thain,12 decided by Eve J. and approved by this court. It is clear, too, that the court in infancy matters is exercising a quasi-administrative function. This appears from Scott v. Scott13 already mentioned. In that case Viscount Haldane L.C. said 14: " In the two cases of wards of court and of lunatics the " court is really sitting primarily to guard the interests of the " ward or the lunatic. Its jurisdiction is in this respect paternal " and administrative, and the disposal of controverted questions " is an incident only in the jurisdiction." But it must always be remembered that their Lordships were referring to the practice of the courts in matters of infancy in relation to the question of publicity. As Lord Shaw said of such proceedings15: "The " affairs are truly private affairs; the transactions are transactions " truly intra familiam; and it has long been recognised that an '' appeal for the protection of the court in the case of such persons " does not involve the consequence of placing in the light of " publicity their truly domestic affairs." There was never any question of affecting the ordinary principles of justice in the determination of infancy cases. All that was decided was that the interest of the public in the open administration of justice might be disregarded in such cases. Their Lordships had not in mind any such case as is before this court. Then we heard much argument upon the technical position of the parents in wardship proceedings. Admittedly at common law a father's rights were absolute unless he had shown himself to be absolutely unfitted, by his personal conduct, to have the care and custody of the child, but, as was shown, for example, in In re

u (1827) 2 Kuss. 1, 19, 20. i« Ibid. 437. 12 [1926] Ch. 676, C.A. i= Ibid. 483. 13 [1913] A.C. 417, H.L. 1 Ch. CHANCERY DIVISION. 403

Thain,16 the court of Chancery never acted upon such rigorous C. A. principles; it is a question to be decided in the circumstances of igg2 each case. The paramount, but not the only, consideration is the welfare of the child, but the wishes of an unexceptional parent ' jn r6. are entitled to the greatest weight. Upjohn JJ.3. For my part I do not think that the question we have to decide is advanced by saying that the parents have no rights or claims but only wishes. This seems to me to be placing too much on the meaning of the words. A parent who is not shown to be completely unfitted to discharge parental duties has a locus standi, a right to be heard. His or her rights or claims (or if you prefer views or wishes) must always be given the most serious consideration and receive the proper weight in all the circum• stances of the case. In the end the court has to come to the conclusion as to what is best to be done for the care and control of the infant upon all the evidence before it. So far, therefore, I am entirely in accord with the observations of the judge and the argument which Mr. Foster has put before us. The jurisdiction exercised in wardship proceedings is not the ordinary case of a lis between two contesting parties, it is quasi- administrative; it is a question in which ultimately the interests of the infant are paramount although the rights, claims or wishes (however you like to describe them) of the parents or other proper parties must be taken into consideration, and given such weight as the judge may consider proper, in forming his final view. These considerations, however, do not seem to me to solve the question that we have to decide. Mr. Goff, for the mother, has pointed out that, accepting the view that the court is exercising an administrative jurisdiction, it does not flow from this that the court is entitled to ignore entirely the usual rules of evidence, and he points out that even an administrative tribunal, when exercising quasi-judicial functions, must follow the rules of natural justice and give a fair opportunity to the parties to correct or contradict a relevant statement prejudicial to their view: see Board of Education v. Bice,17 per Lord Loreburn.18 This case was followed in Errington v. Minister of Health.19 • Then while it may be that there is no mere lis it is quite clear, as Mr. Goff further points out, that in cases in which the Official Solicitor is not a party as guardian ad litem the ordinary rules of

" [1926] Ch. 676. ls [1911] A.C. 179, 182. 17 [1911] A.C. 179; 27 T.L.E. 378, 19 [1935] 1 K.B. 249; 51 T.L.E. 44, H.L. C.A. 404 CHANCERY DIVISION. [1963]

C. A. evidence are applied. This, he says, is shown by the two recent 2 1962 cases of Rossage v. Rossage, " followed and applied by Cross J. in In re J.,21 although the court may have a discretion as to K. (INFANTS), In re. whether inadmissible evidence should be ordered to be struck out. What impresses me, however, is that the authorities establish Upjohn L.J. that in essence the determination of the court upon the question as to what is best to be done for the welfare of the infants is a judicial inquiry. The judge cannot treat the matter as though he were a private parent. It is a judicial exercise. This is shown by two cases of great weight. In In re Fynn 22 Knight Bruce V.-C. said 23: " Of the present case, I may say, that were I at liberty, as I am not, to act on the view which out of court I should, as a private person, take of the course likely to be most beneficial for the infants, I should have no doubt whatever upon the question of interfering with the father's power. Without any hesitation I should do so—to what extent and in what manner I do not say. But there may and must be many cases of conduct, many cases of family differences, family difficulties, and family misfortunes, in which, though interposition would be for the interest and advantage of minor children, courts of justice have not the means of interfering usefully, or, if they have the means, ought not to interfere; and the jurisdiction to which the present petition is addressed is one that, infinitely various as are the possible circumstances in which it is applicable, is yet restricted, and I believe wisely restricted, by certain principles and rules from which there can with propriety be in its ,exercise no departure." Then a little later on he said 24: " Before this jurisdiction can be called into action between them it must be satisfied, not only that it has the means of acting safely and efficiently, but also that the father has so conducted himself, or has shown himself to be a person of such a description, or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect, that his rights should be treated as lost or suspended—should be superseded or interfered with. If the word ' essential' is too strong an expression, it is not much too strong."

2" [1960] 1 W.L.E. 249; [1960] 1 22 (1848) 2 De G: & Sm. 457. All E.E. 600, C.A.' . 23 Ibid. 473. 2i [1960] 1 W.L.E. 253; [1960] 1 u Ibid. All E.E. 603. 1 Ch. CHANCERY DIVISION. 405

In Beg. v. Gyngall25 in this court Lord Esher M.E. said 26: C. A. " The court must, of course, be very cautious in regard to the 1952 " circumstances under which they will interfere with the paren- ZT~Z T 27 " tal right. As Knight Bruce V.-C. said in In re Fynn, the ' jn re. " court must not act as if it were a private person acting with Upjohn L.J. " regard to his child. It must act judicially in the exercise of "its power. That its jurisdiction to interfere with the parental " right is not confined, as was argued, to cases where there has " been misconduct on the part of the parent seems to me clear " from many cases." Then after quoting the passage from In re Fynn 27 that I have just read, he continued28: "That is a clear statement that the " court must exercise this jurisdiction with great care, and can " only act when it is shown that either the conduct of the " parent, or the description of person he is, or the position in " which he is placed, is such as to render it not merely better, " but—I will not say ' essential,' but—clearly right for the wel- " fare of the child in some very serious and important respect " that the parent's rights should be suspended or superseded; " but that, where it is so shown, the court will exercise its "jurisdiction accordingly." The inquiry is therefore judicial and the ordinary principles of a judicial inquiry must therefore be observed. While the welfare of the infants is the paramount consideration, the views and wishes of the parents are entitled to the proper weight. It is, of course, of the essence of the case of the Official Solicitor that the judge would only withhold from the parties information available to him when the welfare of the infants makes it imperative that this course should be followed. Mr. Foster really stated his case in one sentence: "In such cases " trust the judge." Not without reluctance I feel bound to reject that argument. It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his con• clusion without disclosure to those parties who are properly and

" [1893] 2 Q.B. 232; 9 T.L.B. 471, « 2 De G. & Sm. 457, 473. C.A. 28 [1893] 2 Q.B. 232, 242. 26 [1893] 2 Q.B. 232, 242. 1 CH. 1963. 26 (1) 406 CHANCERY DIVISION. [1963]

C. A. naturally vitally concerned, the proceedings cannot be described 1962 as judicial. ~ ~ Take this very case for example. We know not what con- 7n re. ' fidential facts or advice have been given by the Official Solicitor to .~r~, the judge; we know not what written or oral opinions have been expressed by the medical adviser. How can it be right to prevent a parent, whose legitimate interest in the welfare of her infant is at stake, from knowing and giving her the opportunity to challenge those facts, advice or opinions? That harm may result to an infant if such disclosure is made is one of the many distressing results that may occur when a home is broken, but it cannot, in my judgment, be an excuse for a failure to observe what is a most fundamental concept of British justice. My reluctance at reaching this conclusion is tempered by the knowledge that in the Divorce Division all written reports by medical advisers and others are automatically shown to all parties. In reaching the conclusion that the judge was wrong to allow the evidence to affect his mind without giving the opportunity to either of the parents to deal with that evidence, I desire to say that I do not for one moment cast any doubt upon the practice where in infancy cases the judge decides to see in private the infant or the parents separately and alone. The right of the judge to do so is undoubted, though it should be exercised sparingly in the case of the infant, and very sparingly indeed in the case of parents whom he will probably have seen and heard in the witness-box. But the judge sees the infant or parents, not with a view to eliciting further facts but, having heard all the facts, he may legitimately interview them in order to discover, so far as is possible in one interview, their personalities and out• look and so assist him in his final determination of the matter. If, unfortunately, during any such interview some new fact is blurted out, it is for the judge to decide, as a matter of his discretion, whether it is of significance, whether he is going to act upon it or disregard it; but if he is minded to take it into account, it seems to me he should give the parties an opportunity of dealing with and, if needs be, answering these new facts. However, it may safely be left to the judge to consider whether the unexpected disclosure of such new facts makes it essential, in the interests of justice, that he should permit the parties to reopen the whole matter, or whether he will disregard it, bearing 1 Ch. GHANCEET DIVISION. 407 in mind another basic principle " interest reipublicae ut sit finis C. A. " litium." 1962 Beturning to the subject-matter of this appeal, for the reasons ~~~ : ~ given in my judgment the Official Solicitor ought not, in general, rn re_ to submit confidential reports in infancy matters to the judge. Upjohn L.J. In exceptional cases only should he do so, when he believes the disclosure of the information may be harmful to the infant. The' judge must then decide whether he will take the information into account or disregard it altogether. If the former, then it must be disclosed to the parties, if they are not prepared to agree to a limited disclosure to the legal advisers. I would allow this appeal and make an order as asked in paragraph (a) of the notice of appeal.

DAVIES L.J. In opening this appeal, Mr. Goff stated the question for the decision of the court in these terms: "Is a " party to wardship proceedings—in the present case, the " mother—entitled as of right to see a report made to the judge " by the Official Solicitor acting as guardian ad litem of the " infant? " The principle involved would perhaps be emphasised if the question were slightly reformulated as follows: "Is the " judge in such proceedings entitled to see such a report or any " other written material if it has not been seen and is not to be " permitted to be seen by the parties? " One is conscious that it may be thought folly for the uninitiated to rush in on to the angel pavement of Chancery practice. Nevertheless, my answer to the question, in whichever way it is formulated, is an unhesitating "No." Much time was spent in the course of the argument in discussing the historical origin of the office of the Official Solicitor and his practice of making confidential reports to the court in wardship cases where he appears as guardian ad litem. There can be no doubt that the court can in any case call upon the Official Solicitor to make inquiries and to report about such matters as the court thinks fit: Harbin v. Mastcrman,29 Deutsche Bank v. Banque de Marchands de Moscow30; though whether the Official Solicitor has a right to make such a report of his own motion and without the direction of the court, as he appears to have done in the present case, seems somewhat doubtful.' But in neither of those cases, nor in any other case cited to this court, is there to be found any authority for the proposition that the Official

29 [1896] 1 Ch. 351. 3° 158 L.T. 364. 1 CH. 1963. 26 (2) 408 CHANCERY DIVISION. [1963]

C. A. Solicitor is entitled to make, or the court to receive, reports which are confidential and not to be communicated to the parties. 1962 It was submitted, however, for the Official Solicitor that K. (INFANTS), wardship proceedings are governed by entirely different considera• In re. tions from those which apply in other cases, that the jurisdiction Davies L.J. is paternal and administrative (as it undoubtedly is), that by statute, viz., the Guardianship of Infants Act, 1925, s. 1, the welfare of the infant is the first and paramount consideration in such proceedings, that there is no lis in the ordinary sense, and that the parents or other parties have no rights. Conse• quently, it is said, the ordinary rules of evidence and procedure do not apply to such proceedings. It was pointed out, and rightly so, that there may occasionally be cases in which dis• closure to the parties of all the contents of the Official Solicitor's report, or of any accompanying medical report, might be detrimental to the interests and welfare of the infant. It was this last consideration which was the main, really the sole, practical justification put forward in support of the practice of receiving secret or partly secret reports. Some of the submissions made in this connection by counsel for the Official Solicitor struck me as astonishing and, indeed, shocking. It was said, for example, that, since the jurisdiction is paternal and administrative, the rules of natural justice are to be wholly excluded and that the judge is entitled to use and act upon —as would any natural parent or guardian—any knowledge or information however obtained, e.g., in his private capacity. These propositions are, in my judgment, contrary to principle and authority. The case would not appear to be much advanced by the discussion as to whether there is or is not a lis; though it would appear somewhat anomalous that the Official Solicitor should be guardian ad litem if there is no lis at all. Neither does it really assist to inquire whether, once wardship proceedings have com• menced, the rights of the parents are wholly abrogated or merely suspended. The Guardianship of Infants Act, 1925, s. 1, refers to the claims of the father and mother. And upon any view of the matter, the father and mother are interested parties. And, even apart from authority, it would appear obvious that any court adjudicating, inter alia, upon or between such claims or interests must act judicially and in accordance with the ordinary principles and practice of our courts. As Lord Denning M.E. observed in In re L. (Infants),31 " whilst the welfare of the " [1962] 1 W.L.B. 886, 890; [1962] 3 All E.E. 1, 4, C.A. 1 Ch. CHANCERY DIVISION. 409

" children is the first and paramount consideration, the claims of C. A. " justice cannot be overlooked." 1962 But the matter is not free from authority. Lord Esher M.E., 32 K. (INFANTS), in Reg. v. Gyngall, referred with approval to the words of In re. Knight-Bruce V.-C, in In re Fynn,33 to the effect that the Davies L.J. court must not act as if it were a private person acting with regard to his own child, and that it must act judicially in the exercise of its power. In In re Fynn33 Knight-Bruce V.-C. said33: " Of the present case, I may say, that were I at liberty, as I am not, to act on the view which out of court I should, as a private person, take of the course likely to be most beneficial for the infants, I should have no doubt whatever upon the question of interfering with the father's power. Without any hesitation I should do so—to what extent and in what manner I do not say." But the Vice-Chancellor then pro• ceeded to discuss in detail the evidence before him. Again, in In re Carroll,34 Greer L.J. cited 3S with approval the summary of the effect of Reg. v. Gyngall36 contained in the judgment of Fitzgibbon L.J. in In re O'Hara.37 The fourth proposition in that summary is in these words38-39: "In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded." Some reliance was placed by the respondents on Scott v. Scott.4-0 But the observations made in that case, especially by Viscount Haldane L.C.41 and by Lord Shaw,42 while emphasising that the jurisdiction in wardship cases is parental, administrative and quasi-domestic, do not and, in my judgment, were not intended to affect the general principle that the court must act judicially. They cannot be regarded as any authority for the proposition that the court in each case is entitled to act upon " evidence " which would otherwise be inadmissible or improper. It has to be remembered that the question before the House of Lords in Scott v. Scott43 was whether a court, upon the hearing of a petition for a decree of nullity, was, as the law then stood,

32 [1893] 2 Q.B. 232, 242. 3S-39 Ibid. 240. 33 2 De G. & Sm. 457, 473. 40 [1913] A.C. 417. 34 [1931] 1 K.B. 317. « [1913] A.C. 417, 437. « Ibid. 343. 42 Ibid. 482. 3<> [1893] 2 Q.B. 232. 43 [1913] A.C. 417. 37 [1900] 2 Ir.B. 232. 410 CHANCERY DIVISION. [1963]

C. A. entitled to sit in camera; and their Lordships were pointing out 1962 ^aa* the court in wardship cases, in contradistinction to nullity —~~ cases, is entitled to and does exclude the public from the hearing. In re. ' ^ *ne extreme contention for the Official Solicitor in the present case were sound, it would seem to follow that the court is Davies L.J. entitled to exclude the parties from the hearing of a wardship case. This would, indeed, be a remarkable state of affairs. A modern authority pointing in the same direction as Reg. v. Gyngall,44 In re Fynn4S and In re Carroll,46 is the decision of Cross J. in In re J.,47 where it was held that hearsay evidence is not admissible in wardship cases. Apart from the power of the court to sit in private, reliance was also placed on behalf of the Official Solicitor upon two respects in which the ordinary rules of evidence and procedure do not apply or are not followed in wardship cases. In the first place, a report by the Official Solicitor, like the report of a welfare officer in the Probate, Divorce and Admiralty Division, to which I shall refer later, is not upon oath and almost neces• sarily contains hearsay. The Official Solicitor can only report to the court that which the members of his staff have reported to him, and they, in their turn, in many instances will merely have reported to him what others have said to them. And, secondly, it is recognised and accepted practice that the judge may in appropriate cases properly have a private interview with the ward without being under any obligation to disclose anything said to him by the ward at such an interview. It is true that in these two respects the practice both of the Chancery Division and of the Divorce Division in such cases differs from the practice of the courts in other cases. But these differences of practice are readily explainable as being wholly proper and in the best interests not only of the infant but also of all concerned. The Official Solicitor and his staff and the welfare officers are impartial inquirers on behalf of the court, and it is obviously desirable that they should put before the court all the information which they have obtained, hearsay or not. And there would appear to be no necessity for their reports to be on oath. But this is all upon the assumption that the parties know what is contained in the report and are given the opportunity to challenge or contradict anything with which they disagree. The fact that hearsay is inevitable in such reports makes secrecy

44 [1893] 2 Q.B. 232. " [1960] 1 W.L.K..263; [1960] 1 45 2 De G. & Sm. 457. All B.E. 603. *• [1931] 1 K.B. 317. 1 Ch. CHANCERY DIVISION. 411 even more dangerous and undesirable than it would otherwise be. C. A. Those from whom the Official Solicitor has obtained his 1962 information may be inaccurate or mistaken. They may be K- (INFAF N deliberately lying. A doctor may have been given an inaccurate /^In r*re. case-history; he may be mistaken in his diagnosis. Yet it is said that, at the discretion of the judge, parties may be deprived Davies L.J. of the opportunity of putting the true facts, or what they submit are the true facts, before the court. It is said that one must trust the judge to put out of his mind anything that should not be there and to disclose to the parties anything as to which there is obviously a real issue of fact. The members of this court do, of course, trust the judge, while remembering that judges, even those of the Chancery Division, are human and may uncon• sciously be affected by something which they try to put out of their minds. But that is not the point. The point is that a parent or other party may feel a real sense of injustice if he knows that the judge has had a secret report and may possibly be deciding the case upon matters of which the party is wholly ignorant. If a private individual is the guardian ad litem, it is not the practice—as one would not expect it to be—for the court to receive any confidential report from such a guardian. More• over, it appears that in the large majority of wardship cases the infant is not a party; and again the court proceeds without any confidential report. The practice that the judge may interview the ward or child, if he thinks fit so to do, is, of course, well established. The objects of such an interview are, inter alia, to form some idea of the character and personality of the infant and to obtain, though by no means necessarily to follow, his views as to what course the court should take. At such an interview the infant will, in all probability, make statements of fact which, in many cases, it would be a breach of confidence or otherwise undesirable for the judge subsequently to disclose to the parent. But the practice is special to the jurisdiction over infants, whether in the Chancery Division or the Divorce Division, and is an excep• tion to the general rule. No parent would be likely really to resent or think unjust the happening of such an interview with the infant. It is obviously entirely different in kind from the receipt by the judge of secret information emanating from unidentified and unidentifiable sources. Ungoed-Thomas J., in the course of his judgment in this case, referred48 to the practice of obtaining, in proceedings in the 48 Ante, p. 389; [1962] 3 W.L.B. 752, 757: 412 CHANCERY DIVISION. [1963]

C. A. Probate, Divorce and Admiralty Division for custody or access, 1962 reports from a court welfare officer. "In the Probate, Divorce and Admiralty Division," he said,48 "a practice note issued K. (INFANTS), In re. on May 25, 1950, states that a judge may, on an application for custody or access, refer to a welfare officer for an inquiry Davies L.J. and report as to the welfare of the children who are the sub• ject of the application. Although in accordance with a circular of July 14, 1959, the welfare officer's report is dis• closed to the parties, I learn from inquiries which I have made in that division that the welfare officer may also make an oral report to the judge which, in his discretion, the judge may or may not disclose to the parties. Thus the written report of the welfare officer is the counterpart of the statement of facts of the Official Solicitor in the Chancery Division, and his oral report is the counterpart of the report of the Official Solicitor." With the greatest respect, I do not agree either that it is or that it ought to be the normal practice of the Divorce Division that judges should receive oral reports from the welfare officer over and above the written report which is disclosed to the parties. There may be an exceptional case, say, for example, where there is a possibility of a reconciliation between the spouses, where such an interview may properly take place. But, as I understand the practice of the Divorce Division, questions to the welfare officer upon his report, directed to an explanation or expansion of it, are and should normally be put by the judge in the presence of the parties. In a very exceptional case I suppose that the judge might direct the welfare officer to give evidence on oath and undergo cross-examination. It may be right to point out that the judges of the Divorce Division deal with a very much greater number of disputes as to custody and access than do the judges of the Chancery Division; and I am not aware that the determination of the cases in the Divorce Division has ever been thought to be prejudiced or handicapped by the absence of the secret and confidential reports which it is now argued are so essential to the proper exercise of the court's jurisdiction in wardship cases. And, as has already been pointed out, wardship cases in the Chancery Division are in the large majority of cases dealt with without these confidential reports, namely, those cases in which the infant is not a party or is not represented by the Official Solicitor. The advantages which Air. Foster, for the Official Solicitor, suggests are to be derived

« Ante, p. 389; [1962] 3 W.L.E. 752, 757. 1 Ch. CHANCERY DIVISION. 413 from such reports are due not to the secrecy of the reports but to C. A. the fact that the court receives information which it might other- igg.2 wise lack. And it is difficult to see any reason why this informa- tion should not be available to the parties as well as to the court. ' j^fe In my opinion, the references to section 109 (5) and (7) of the Mental Health Act, 1959, and to rule 14 of the Adoption Davies L.J. (High Court) Eules, 1959, do not assist the argument put forward on behalf of the Official Solicitor. If it is thought desirable to permit the reception of secret and confidential reports in wardship cases, then the Eules Committee, if they have power so to do, or the legislature can so provide. But the existence of the two pro• visions in question seems rather to point to the conclusion that were it not for these provisions disclosure would have to be made. So far as concerns the recent policy of the legislature, it would be no less apt to point to the provisions of section 4 of the Matri• monial Proceedings (Magistrates' Courts) Act, 1960. By sub• section (2) of that section it is provided that a magistrates' court may before making an order with regard to children call for a report, either oral or in writing, by a probation officer or by a children's officer of a local authority with respect to such matters as the court may specify. And subsection (3) provides as follows: " Any statement which is or purports to be a report in pursuance of the last foregoing subsection shall be made, or if in writing be read aloud, before the court at a hearing of the complaint, and immediately after it has been so made or read aloud the court shall ask whether any party to the proceedings who is present or represented by counsel or solicitor at the hearing objects to anything contained therein; and where objec• tion is made—(a) the court shall require the officer by whom the statement was or purported to be made to give evidence on oath with respect to the matters referred to therein; and (6) any party to the proceedings may give or call evidence with respect to any matter referred to in the statement or in any evidence given by the officer." That section does not, of course, apply to wardship proceedings any more than do the provisions of the Mental Health Act or the Adoption Rules. But it is interesting to see that in this recent Act, dealing with matters which are, in some respects, not unlike those which fall to be dealt with in wardship proceedings, the legislature provided that full disclosure should be made to the parties of any report made to the court. And there is little doubt that in some of the reports made to magistrates' courts under the section there might be found matters as to which it might be said 414 CHANCERY DIVISION. [1963]

C. A. that it would be detrimental to the child for them to be disclosed 1962 t° **ne parties. ;—~ ~ Mr. Goff, for the mother, pointed out that difficulties might In re. ' ai'ise if the judge were to disclose—as apparently Ungoed-Thomas J. proposed to do in the present case—a part only of the confi- Davies L.J. * x r ^ — dential report and were to permit cross-examination upon the disclosed part. It might be difficult, it was said, for the cross- examiner, aware only of the disclosed part, to avoid trespassing on to undisclosed matters; equally, it might be difficult or embarrassing for the person under cross-examination to answer fully and fairly, in the light of his knowledge that disclosure of some part of his report had been prohibited by the judge. One can see that some such difficulties might arise; but this matter is only incidental and subsidiary. The real point in this case is that the undesirability of and the dangers inherent in the receipt by the court of secret or confidential reports are so great as entirely to outweigh the dis• advantage which might occasionally arise from full disclosure. In my judgment, the court, whether in the exercise of its jurisdiction in wardship cases or in any other case, is not entitled to receive secret information, whether hearsay or not, unless by statute or otherwise it is expressly authorised so to do. I agree that the appeal should be allowed in the terms proposed by my Lord.

EUSSELL L.J. There is only one question for decision in this case. When a ward of court is joined as a party to the wardship proceedings, and the Official Solicitor is appointed the guardian ad litem, and he makes a written report on the matter to the judge, is it imperative that any part of such report as the judge considers relevant to any decision in the case should be disclosed to the other parties to the proceedings (if they insist) notwith• standing that the judge forms the view that such disclosure would be harmful to the ward? Ungoed-Thomas J. has answered that question in the negative. Of its nature the circumstances giving rise to the question can only rarely occur. So far as I know the right of the judge to withhold such disclosure has not been challenged before, even by argument at first instance. My impression is that the Chancery judges as a whole have assumed such a right to exist. In my own experience, in one such case, I exercised what I assumed to be my right, and performed what I conceived to be my duty, by not disclosing such a report of psychiatric treatment of a ward 1 Ch. CHANCERY DIVISION. 415

(material to a decision as to the immediate future of the ward) C. A. when I was certain that disclosure would result in an unbalanced ±$G2 mother badgering the ward on the contents of the report in a manner which could only harm the ward. In giving that example ' jn re let it not be thought that I suggest that such is the present case. Russell L.J. We know nothing of the report except that the judge, the Official Solicitor and counsel for the wards are at one in considering that disclosure to the parents would be harmful to the wards. The cases in which the infant is made a party and the Official Solicitor is appointed guardian ad litem are in fact, I think, limited to two types. First, where it appears likely that the personal animosities or mental dispositions of the adversaries are such that the best interests of the ward may take second place in the deployment of their evidence and argument. In that type of case the purpose of joining the infant with the Official Solicitor as guardian ad litem is so that the judge may have the assistance of an experienced person, undoubtedly impartial, whose only interest is the welfare of the ward. The second type of case is that which recently has become more frequent, when both parents are united in opposition to an association of a child of marriage• able age: in this case also the infant is joined as a party with the Official Solicitor as guardian ad litem so that the judge may have the same assistance. Much of the argument before us was, most properly, related to the somewhat obscure history of the jurisdiction over wards. It does not seem to me, however, that this question can, in 1962, be decided by reference to the position of the Crown as parens patriae, or the delegation of that position to the Lord Chancellor, and by him to the judges of the Chancery Division. I cannot think that the exercise of the jurisdiction would or should be on different lines in the unhappy event of the establishment of a republic. Nor do I think that this question can be decided by a consideration of " rights " of parents, or whether wardship pro• ceedings involve administration, or a lis (Latin, after all, for lawsuit), or a quasi-lis (Latin, after all, for something resembling a lawsuit). It must be remembered that the adverse parties in wardship proceedings are not necessarily the parents at all: some• times only one parent is concerned: sometimes both parents are dead or otherwise missing, and the rivals (relations or not) cannot be described as having any " rights " in relation to the ward. What is undoubted is that the jurisdiction is that of a judge as such whose decision is subject to appeal to this court. But, subject to that important qualification, the judge is put in the 416 CHANCERY DIVISION. [1963]

C. A. position of a sole parent whose ward is his child-in-law: if the 1962 other parties to the proceedings (for example, the parents) are agreed on one aspect of the ward's future it remains the duty of \. (INFANTS), In re. the judge to order otherwise if he thinks it best for the ward, though he would rarely find it necessary thus to impose his views: Russell L.J. it is certainly clear that the judge may well decide on a course which neither parent has put forward, for this often happens. It is this position in law of the judge which peculiarly restricts this court in interfering with the decision of the judge, even if this court feels that if it was deciding the case at first instance it might take a different view. It is not doubted that there are some aspects of this jurisdic• tion which distinguish it from the ordinary course of inter partes lawsuits. In particular it is not disputed that the judge may properly interview privately the ward in all cases. In my experi• ence it is unrealistic to regard such interviews as the equivalent of a " view '' of the scene of a factory accident: in some cases it affects the judge's mind when, in order to win the confidence of the ward, it has been essential to tell him or her that their con• versation is confidential: it is true that the ward may say some• thing which appears important but which no judge would act upon on the ipse dixit of the ward: he must then decide what course to adopt: but this situation is not disputed as a possibility. I only mention it as an admitted exception from the normal course of a lawsuit. Again it is not disputed that in wardship cases the judge may privately and separately interview, for example, the contesting parents: I agree that this more nearly approximates to a " view," but is not quite the same, and is to that extent a peculiarity of wardship proceedings. It is further not disputed that the Official Solicitor, as an independent protector of the ward, may submit a report, involving maybe hearsay, though opposing parties in wardship proceedings must submit evidence on oath which is not hearsay: the only contention is that such report must be disclosed and therefore available for criticism and contradiction. With these preliminary observations I return to the question for decision. It is said, with force, that it is contrary to natural justice that the contentions of a party in a judicial proceeding may be overruled by considerations in the judicial mind which the party has no opportunity of criticising or controverting, because he or she does not know what they are: moreover, the judge may (without the inestimable benefit of critical argument) arrive at a wrong conclusion on the undisclosed material. Even 1 Ch. CHANCERY DIVISION. 417 worse, the undisclosed evidence may, if subjected to criticism, G. A. prove to be misconceived, or based on false premises. How, then, 1962 it is said, can one accept with confidence the judge's view that K. (INFANTS), that which is undisclosed should be relied upon? Mr. Foster In re. said that the answer to all this is: " Trust the judge." But the Russell L.J. suggested reply is that one should not be asked to trust the judge unless and until he has fulfilled the judicial function of studying evidence available to all parties and listening to argument based upon.such evidence. Moreover, it is said, how is a party to conduct an appeal from a wardship decision when the Court of Appeal is (presumably) in possession of a secret document (the Official Solicitor's report) which ex hypothesi is not referred to in the judgment except by a general reference? Against this is set, on the question of appellate procedure, the fact that on an appeal from a refusal of an adoption order there exists by statute, undisclosed to the would-be adopters, a con• fidential report: this procedural problem is therefore accepted by statute in another context. More importantly it is said that the substantive law of wardship proceedings is summarised in the Guardianship of Infants Act: this says that the first and para• mount consideration is the welfare of the infant: how, then, it is said, can it be right to insist on the application of a view of natural justice to the procedural law in a manner which in the view of the judge will do harm to the infant? Here, it seems to me, is the crux of the problem. Whatever phrases are used, what on balance is the right course to adopt? Perhaps (as is common to most decisions in infant cases), what is the less wrong course to adopt? On the one hand it would seem intolerable for a judge to adopt a course which he is convinced will harm the child whose protection from harm is his duty. On the other hand it would seem intolerable that a judge exercising a judicial function should, against the protest of a person who is a party to proceedings, decide a case in part upon information not subject to critical comment by one who, at least if a parent, is by nature more personally and intimately engaged and absorbed in the outcome than in the case of almost any other type of litigation. Balancing all these considerations as best I can I arrive at the conclusion that it is less wrong that, if a party to wardship proceedings insists on disclosure of aspects of a written report of the Official Solicitor which the judge (a) considers relevant to his decision and (b) considers inadvisable (as harmful to the ward) to be disclosed to the parties, the disclosure should be made. I am partly led to this conclusion by the consideration that, if the judge 1 CH. 1963. 27 418 CHANCERY DIVISION. [1963]

C. A. is misled by the information which he does not disclose, his decision 1962 may, unknown to him, lead in some other way to harm to the infant. It follows that in the present case the appeal must be allowed. K. (INFANTS), In re. I add this. The father in this case is prepared to accept— albeit somewhat unwillingly—the judge's view that disclosure Russell L.J. will harm the children. The mother insists that she be personally told of the contents of the report of the Official Solicitor. For the reasons I have given I think that, balancing the danger of error in the report or in the judge's mind against the danger of harm to the infants, she is entitled to this. I think, however, that when cases such as this arise the proper practice would be for the judge to state his view that disclosure to the parties would be harmful to the ward, and disclose in the first instance to their legal advisers. This will give an opportunity for those legal advisers to consider whether they agree with the judge's view, and whether they think that disclosure should nevertheless be made. If they so agree and do not favour dis• closure they can tell the clients so: the clients can still insist on seeing the report, but may decide not to having regard to the advice of their own representatives. I think that in the present case that course should be followed. In relation to the practice of the Official Solicitor of making, in addition to his statement, a report not immediately disclosed to the parties, in my view this practice should be confined to matters whose disclosure he considers would be harmful to the ward. This limited retention of the " report " practice will enable the course to be followed which I have just suggested might be followed in the present case. Appeal allowed. Leave to appeal to the House of Lords granted to the Official Solicitor; refused to the father. If appeal to House of Lords not prosecuted before December 16, 1962, case to be remitted to Ungoed-Thomas J. for his decision whether the reports should be disclosed to the parties or whether the Official Solicitor should be per• mitted to withdraw his reports, in which case the matter to be remitted to another judge. No order as to costs of appeal save Legal Aid taxation. Solicitors: Kingsjord Dorman & Co.; the Official Solicitor; Bentleys, Stokes & Lawless. ^ JJ_ B