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X, Re Application for
Judicial Review [2007] NIQB 74 (04 October 2007)
Ref: GILF5937
IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND ________ QUEEN'S
BENCH DIVISION (JUDICIAL REVIEW) ________
IN THE MATTER OF AN APPLICATION BY X (BY HIS
NEXT FRIEND) FOR JUDICIAL REVIEW OF A DECISION OF A SCHOOL
AND THE NORTH EASTERN EDUCATION AND LIBRARY BOARD
_________
GILLEN J
[1] In order
to protect the identity of the young person who is the
applicant in this case I have anonymised all references to
either him or his school. The applicant seeks an order of
certiorari to quash the decisions of the principal of the
school at which he was attending and the North Eastern
Education and Library Board excluding him from that
school. He further seeks a declaration that the decisions
were unlawful and an order of mandamus compelling the
principal of the school to allow him to return.
[2] The
background to this matter is that the applicant has been
suspended from the school in February 2007. The principal
of the school described the circumstances in which the
suspension took place in an affidavit of 7 June 2007. In
the course of that affidavit, the following extracts are
relevant to this application:
"3. On Wednesday 31 January 2007 I was approached
in the school corridor by two pupils in the school. One
of them was visibly very distressed. I took the girls
into a room to discuss the problem and I was informed
that one of them was terrified by the applicant. This
pupil made clear to me that she did not wish to make any
formal complaint against (sic) and that she did not wish
me to tell him what she had reported as she was in fear
of him. I do not now wish to say or do anything which
may betray the confidence of this pupil or which may
assist in identifying her. Accordingly I do not feel it
is appropriate to provide details of the information
which I was given. I confirm the report was made to me
of conduct on the part of the applicant both inside and
outside school which was causing her deep distress. I
thanked and reassured the girls for approaching me and I
assured them that I would help them whatever I could.
Later that day, the friend of the girl who was
distressed came to me a second time. This time she was
alone. She informed me that the other girl was suffering
from deep distress, and that she had extremely low
self-esteem, that her own needs were being turned
against her and that her friend was 'thinking of ending
it all'. She also gave me further details of the nature
of the applicant's behaviour, within school, which had
been causing so much distress. She indicated that this
behaviour was of a subtle and covert nature and that she
herself had witnessed it. I regarded the report which
was being made to me as both sincere and genuine. I also
regard it as extremely serious. At this time, the
applicant was absent from school on work experience but
was due to return on 6 February 2007. The girl informed
me that her friend was extremely distressed and fearful
at the prospect of the Applicant's return to school the
following week.
……..
7. On 2 February 2007, the (Vice Principal) informed me
of the content of (a multi-disciplinary case conference)
the previous day and of some of the very serious
allegations which were being made in respect of the
applicant. I made contact with Mrs O'Hare (child
protection officer for the Board) immediately and
sought advice as to how the matter should be progressed.
She recommended that a risk assessment meeting take
place within the school and that both Social Services
and PSNI should be invited to attend. I was also advised
by Mrs O'Hare to continue to manage the situation within
the school in a manner which I had already commenced.
8. The risk assessment meeting took place at the school
on Tuesday 6 February 2007. Minutes of that meeting are
exhibited hereto at pages 7 and 8 of the aforementioned
bundle of exhibits. It was attended by me, a
representative of Social Services, PSNI, Juvenile
Liaison Officer and Mrs Patricia O'Hare. I was informed
by PSNI of the ongoing investigations into the applicant
and detailed discussions took place about the incidents
which had occurred inside school. As a result of that
meeting it was agreed that information relating to the
complaint made by the pupil should not be divulged to
the applicant in order to protect her identity and also
to prevent any further deterioration in her mental
health. It was also determined that immediate steps
should be taken to manage the risk posed by the
applicant to pupils within the school.
………………………………………….
24. On 4 May 2007 a meeting was arranged at the school
in order to discuss the applicant's situation with his
mother and grandparents. In attendance at the meeting
were the applicant's mother, grandparents, Mrs O'Hare
(Board's Child Protection Officer), me and an elected
representative on behalf of the applicant. This was a
meeting which had been anticipated between the parents
and the Board and which was referred to in the letter of
suspension together with the following extension
letters. The meeting was arranged following receipt of
the minutes of the strategy meeting and assessment
carried out by Social Services. I am advised that
efforts were made to arrange this meeting in the
previous week but that the applicant's mother had been
unable to attend due to work commitments. Copies of the
minutes of this meeting are exhibited hereto at pages 48
and 49 in the bundle of exhibits. As appears from those
minutes the applicant's family and their representatives
stress that the allegations being made against (the boy)
outside of school were false and that they were
attempting to gather evidence to that effect. It was
pointed out by me that it was not appropriate for the
school to get involved in those allegations and that the
suspension had been based upon an allegation and
potential risk within the school, not the allegations
about his conduct out of the school. I believe that this
meeting was a progressive meeting. We discussed some of
the risks which were posed to the applicant himself if
he returned to school. In particular I expressed my fear
that some other pupils in the school may seek
retribution against the applicant and that this posed a
real risk."
The current application
[3] Responsibly
the parties have entered into correspondence on the issue
of disclosure. The only outstanding matter now before me
arises out of the request by the applicant for details of
the assessment carried out by Social Services and referred
to in paragraph 24 of the affidavit of the principal set
out above by me.
[4] Inter
alia, the respondent refuses to disclose this document. In
correspondence of 18 July 2007 the reasons were set out as
follows:
"This document contains personal information which
is private to the girl complainant. The respondent does
not accept that it is relevant to the issues in the case
and/or that disclosure of it is necessary to deal with
the issue of the lawfulness of the applicant's
suspension from school. In addition, disclosure will
have the result of revealing the identity of this girl,
which is not appropriate in the circumstances."
Legal principles
[5] Discovery
in judicial review cases , still governed by Order 53 Rule
8 which includes applications for discovery pursuant to
Order 24, has recently been reconsidered in Tweed v
Parades Commission for Northern Ireland (2006) UKHL
53. Lord Carswell, in paragraph 32 of his speech, said as
follows:
"I do consider, however, that it would now be
desirable to substitute for the rules hitherto applied a
more flexible and less prescriptive principle, which
judges the need for disclosure in accordance with the
requirements of the individual case, taking into account
the facts and circumstances. It will not arise in most
applications for judicial review, for they generally
raise legal issues which do not call for the disclosure
of documents. For this reason the courts are correct in
not ordering disclosure in the same routine manner as it
is given in actions commenced by writ. Even in cases
involving issues of proportionality disclosure should be
carefully limited to the issues which require it in the
interests of justice. The subject will be assisted if
parties seeking disclosure continue to follow the
practice where possible of specifying the particular
documents or classes of documents they require, as was
done in the case before the House, rather than asking
for an order of general disclosure."
[6] Lord
Carswell continued at paragraph 33:
"A party whose affidavits contain a reference to
documents should therefore exhibit them in the absence
of a sufficient reason (which may include the length or
volume of the documents, confidentiality or public
interest immunity). If he raises objection to production
of any document, the judge in a Northern Ireland case
can decide on the hearing of a summons under Rule 12 to
order production bearing in mind the provision of Rule
15(1) that no such order is to be made unless the court
is of the opinion that the order is necessary either for
disposing fairly of the cause or matter or for saving
costs."
[7] Lord
Brown of Eaton-Under-Heywood said at paragraph 56:
"In my judgment disclosure orders are likely to
remain exceptional in judicial review proceedings, even
in proportionality cases, and the courts should continue
to guard against what appear to be merely 'fishing
expeditions' for advantageous further grounds of
challenge. It is not helpful, and is often both
expensive and time consuming, to flood the court with
needless paper."
Conclusion
[8] I
have come to the conclusion in this case that the
application must be dismissed for the following reasons:
[9] First
the document now sought was drawn up after the applicant
was suspended. It was not available to the Board until May
2007. The purpose was to assist in risk management and
potential child protection matters. On that ground alone I
consider that disclosure is not necessary to dispose
fairly of the matter or to save costs. I do not consider
it is relevant to the decision which is under challenge,
having been drawn up some weeks after that decision was
made. It therefore could have had no influence on the
decision to suspend.
[10] Ms
Quinlivan, who appeared on behalf of the applicant, has
asserted that the applicant is suffering a breach of
Article 6 of the European Convention on Human Rights and
Fundamental Freedoms because to date he is unaware of the
identity of his accuser or the precise nature of the
accusation. Counsel submits that the report which is
sought from Social Services may include an assessment of
the girl's veracity, the date when the complaint was made
and an account of the nature of the accusation. I do not
consider these suppositions to be adequate justification
for disclosure. Any such assessment of the veracity of the
child who has made the accusation was not before the
decision-maker and therefore is not relevant to the
impugned decision.
[11] Confidentiality
is a factor to be taken into account in considering
disclosure. In this case, both parties are children ie.
accused and accuser. In the instance of the female child
who has made the complaint, I must recognise that this is
not a case under the Children Order (Northern Ireland)
1995 where the interests of the child would be paramount.
Nonetheless I consider that even if this document had been
relevant, which I have ruled it is not, it would have been
appropriate to take into account the damaging effects
which the revelation of this girl's identity would have
had upon her health as evidenced in the affidavit of the
principal. A social service report will conventionally
contain in any event a number of personal and intimate
details about this girl which would be wholly irrelevant
and which could serve to identify her. I appreciate that a
process of redaction of irrelevant material could address
some of the concerns. However it is the view of the
principal that the information sought namely her identity,
the nature of the accusation and any assessment of her
could all have served to clearly identify this child to
the applicant in circumstances where he is concerned that
this could present significant dangers to her. In my view
the principal and the Board have adopted a reasoned and
fact sensitive approach to this matter. I have concluded
that his decision to withhold disclosure of that document
is measured, proportionate and compelling.
[12] Had
this been the only ground upon which I was withholding an
order for disclosure, it would have appropriate for the
court to weigh that consideration, and its strength in the
circumstances of the case, against the interests of the
applicant in having an opportunity to see and respond to
the material. The court would have been entitled to
inspect that part of the report which refers to the
parties concerned and to consider whether disclosure of
the material, suitably redacted, would have involved a
real possibility of significant harm to the female child.
Since I have concluded in any event that the document
sought is not relevant, it has been unnecessary for me to
consider this step.
[13] I
therefore dismiss this application.
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