Social worker wins right to use documents for ECHR claim over judicial criticism

The President of the Family Division, Sir James Munby, has allowed a social worker to use restricted documents in proceedings to be brought over a judge’s critical remarks about her.

Giving judgment in W (Children), Re SW (No 2) [2017] EWFC 74, he allowed a social worker (SW) to disclose documents generated in care proceedings in which she and a police officer were criticised in a draft judgment by the judge, which led to her suspension from work.

SW had had that judgment overturned on appeal but then intended to issue proceedings in the Queen's Bench Division against the Lord Chancellor and Ministry of Justice for misfeasance in public office and under section 7(1)(a) of the Human Rights Act 1998 (HRA) on the grounds that they bore ultimate responsibility for the original judge’s actions.

She was later advised that she was unlikely to be able to establish bad faith and/or a lack of good faith in such proceedings, but could instead bring an application to the European Court of Human Rights for breach of Articles 6, 8 and 13.

Sir James was asked to rule on whether SW could use the documents so long as those involved in the proceedings were anonymised.

He said he made the order allowing this as “family courts should not stand in the way of, and should, on the contrary, take all appropriate steps to facilitate, the proper administration of justice elsewhere”.

Mark Smulian