![FD24P00133 - [2025] EWHC 1292 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Conclusions
Conclusion
This short judgment is intended as a reminder to the Trusts who are, almost inevitably, the applicants in these difficult and stressful cases that the issues involved are, without hyperbole quite simply issues of life and death. There is an obligation to put before the court and provide to those acting for the subject child’s parent and those appointed independently to represent the child’s best interests the material necessary properly to make an evaluation of the evidence and to reach a decision on those serious issues. That includes recordings, for example play therapists notes, which are likely to give the Court information about a child’s quality of life and which may be held outside the medical records. It is unusual, in my own experience at least, for applicant Trusts in this sort of case not to do precisely that. It has been disappointing that Birmingham Women's and Children’s Hospital has in this case fallen short. Although this aspect of the conduct of the case does not fall to be included within the substantive judgment neither should the very real difficulties resulting from the lamentable situation in relation to proper disclosure pass without comment.
I make the following observations resulting from the consequences of the difficulties with disclosure which were, I am sure, not intended, but which just the same had a real impact on the case as it unfolded before me.
It is enormously disrespectful to families whose child is the subject of such an application to have repeated hearings at which there is focus on whether material does or does not exist / has or hasn’t been produced/ will or won't be available in time to make effective a hearing which has been listed weeks perhaps months in advance, at which they know that the most serious of decisions is to be made about their child.
It is unacceptable to take so casual an approach as there appeared to be here, to ensuring that the records required and directed are before the court. It has been in this case unacceptable also to put Ms Scott – in whose word both the court and the other counsel rightly have confidence – in the position of saying on instructions one thing only to have to within days, sometimes hours, correct the position.
That sort of approach to the production of material which everyone who acts in this sort of litigation knows will be needed so as to assess (in the case of the court) and argue (in the case of the parties) the best interests analysis is not good enough. Health Trusts are almost invariably both the applicants, and the holders of the records. There is no question that the significance of the material is not understood or that the applicants are not in the position to have that material ready or near ready as they come to make the application. That is not to say that ‘everything’ must be disclosed, but a Trust making this sort of application should be on notice that if not at the first then likely at the next hearing, the Judge is likely to be making directions for disclosure of at least some of the medical records and other information held
It is unreasonable – and professionally beyond discourteous- to put Counsel in the position of having to spend time making applications for material with which they should already have been provided when that time has been set aside for preparation.
It is not right that decisions such as the one which fell to be made for this child in this case are made in circumstances where all involved are placed under unnecessary and unreasonable additional pressure. Neither is it acceptable to risk either that decisions might be made, or just as significantly may be perceived to be made, in a way which is rushed.
Whereas in other categories of litigation in which records are necessary but produced late, inadequately copied or not at all, there is an obvious course open to the court; namely to relist the case when it is properly trial ready (and with attendant orders as to costs), that course is very often not available to the Judge in the Family Division hearing this sort of case – see [9 -10] above.
On occasion the language spoken and the sanctions sounding in costs applied more often elsewhere than in the Family Division, has its place in this Division also. It has the advantage of being clearly understood and has the effect sometimes of ensuring minds are focussed. I had in this case contemplated reflecting in a costs order the consequences of the situation I have described in this judgment. I have at a little distance from the hearings, concluded that it is not the approach to take.
It is not my intention in this judgment to condemn unnecessarily failings some of which lie in human error or to impose some sort of punishment for what has gone wrong and I hope it does not have too much of the flavour of that. The Trust has, in my view commendably, not sought to shy away from the mistakes and inadequacies in this case. I am heartened by the evidence as to the changes it is making and intends to make in its own practices and systems. It is however my view that there is purpose in offering suggestions which may avoid future similar applications made being affected by the issues which arose here:
An index at an early stage should be compiled by the applicant of the records held by the Trust including, as well as the clinical and medical records any therapeutic records. A senior person at the Trust should be responsible for reviewing whether all categories of material have been included.
It is likely to be helpful to identify a person with responsibility for ensuring that the index is kept up to date.
If records are duplicated or held in more than one place, this should be indicated on that index.
At the first hearing of the application the index should be available to the court.
Once disclosure into proceedings (or to the parties) is directed from the index the material disclosed should be indexed and paginated. Ideally pagination should be in a form which is then added to rather than changed.
Once disclosure into proceedings (or to the parties) is directed any material which is copied from paper records should be inspected (and a person from the Trust identified to have responsibility for inspection) to ensure that the copies are of sufficient quality, before it is added to the indexed and paginated material.
Recognising that human error may occur in any organisation a senior person should be identified with responsibility to ensure that material readied for disclosure is sent out.
It is likely to be helpful at the first hearing of any application for the parties to have discussions before disclosure of material as to whether it is reasonably possible for that material to be disclosed in a form which makes it text searchable. It will not always be realistic, but it is an issue to be raised early rather than later in the process of disclosure into proceedings.
It was in this case possible to complete the hearing and to reach decisions on the application despite the issues which I have described in this judgment. Possible only because everyone involved, and I include in that those instructed for the applicant Trust, made the greatest efforts to ensure that it was. In this case, the difficulties which arose in relation to disclosure did not ultimately have an impact on the decision I made in relation to the substantive application, the reasoning for which appears in the substantive judgment.