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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.

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