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She has ongoing severe respiratory symptoms. FAC |
Increasing stress would undoubtedly be of no benefit to her ongoing symptoms and would not help her rehabilitation to occur more quickly. FAC |
By the time the matter came to be heard by Peter Jackson J on 20 January 2012, the state of knowledge of the various actors was as follows. FAC |
The local authority not only knew the identity of X but also had a full record of her allegations. FAC |
M also knew the identity of X, because in July 2010 the local authority had inadvertently disclosed to her unredacted material which had enabled her to work out who X was. FAC |
M states that she spoke to X as a result and has come to believe that her allegations are true. FAC |
But she does not know the details. FAC |
F has always denied that he has sexually abused anyone and has alleged that M is behind the allegations in order to prevent his having a relationship with his daughter. FAC |
He states that he does not know who X is. FAC |
The Childrens Guardian inadvertently came to know her identity in September 2011 because her name was erroneously left in a document disclosed by the local authority. FAC |
But the Guardian knows nothing more of the confidential material. FAC |
The Judge did, however, have all the material as he had ordered in September 2011 that the material for which the local authority claimed public interest immunity be disclosed to the court. FAC |
On 16 February 2012, Peter Jackson J gave judgment dismissing the applications of M, F and the Childrens Guardian for disclosure of the local authoritys records: [2012] EWHC 180 (Fam). RLC |
He accepted the medical evidence about the potentially serious effect of disclosure on Xs health. FAC |
The information, once disclosed, could not be controlled. FAC |
Her identity and the allegations were inextricably intertwined. FAC |
Having earlier reached the conclusion that compelling X to give evidence would be oppressive and wrong, to order disclosure when the court was not prepared to order her to give evidence would risk harming her health without achieving anything valuable for A and her parents. FAC |
The nature of the allegations was such that they could not readily be proved or disproved by reference to third parties or independent sources. FAC |
It was therefore unlikely that any outcome achieved in Xs absence would clear the air between the parties or provide a solid foundation for future arrangements for A. The court must also have regard to the interests being balanced, contact on the one hand and physical and mental health on the other. FAC |
His judgment did not, in so many words, make it clear that the confidential material would henceforth play no part in the case. FAC |
Indeed there are passages in his judgment which might be taken to suggest otherwise. FAC |
The Childrens Guardian appealed and it was agreed that the Court of Appeal should also see the full material. RLC |
On 24 July 2012, the Court of Appeal announced that the appeal was allowed: [2012] EWCA Civ 1084. RLC |
McFarlane LJ gave short oral reasons. RLC |
The principal reason was that the mother was now in the worst of all possible positions, knowing and believing X, but not being able to have the truth of the allegations resolved in the proceedings. RLC |
On 21 September 2012 McFarlane LJ gave a full judgment with which Thorpe and Hallett LJJ agreed: [2012] EWCA Civ 1204. RLC |
The Court held that the judge had been wrong to link consideration of whether X could ever give oral evidence with the issue of disclosure. RLC |
Until the relevant adults were told of the allegations, it was simply too early to decide whether or not they could be proved or disproved by reference to third parties or independent sources. RLC |
Disclosure of the core material had a freestanding value irrespective of whether or not in due course X could be called to give oral evidence. RLC |
The Court also held that it would have been wrong for Peter Jackson J to continue to hear the case having read the confidential material but having refused to order its disclosure. RLC |
The Supreme Court gave X permission to appeal. Ratio |
Unlike the High Court and the Court of Appeal, this Court has not seen the material for which public interest immunity is claimed. Ratio |
On the other hand, this Court has had the benefit of hearing argument from counsel appearing pro bono for both the mother and the father who were acting in person in the courts below. Ratio |
We are most grateful to Frank Feehan QC and Gemma Taylor and to Jane Crowley QC and Sharon Segal for offering their services, which have been very helpful to us in resolving this difficult issue. Ratio |
The positions of the parties are as follows: (i) Sarah Morgan QC, on behalf of X, resists disclosure on the primary ground that this will violate her right not to be subjected to inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights. ARG |
Alternatively, the balance between her right to respect for her private life and the rights of the other parties should be struck by the court adopting some form of closed material procedure which would enable the allegations to be tested by a special advocate appointed to protect the parents interests but without disc... |
(ii) Paul Storey QC, on behalf of the Childrens Guardian, supports disclosure in the interests of A. As right to respect for her private and family life is engaged, as potentially is her article 3 right to protection from abuse: see Z v United Kingdom (2001) 34 EHRR 97. ARG |
The allegations cannot be ignored but they cannot be taken into account unless they can be properly investigated. Ratio |
(iii) The mother is in the same position, but with the additional feature that she knows who X is and believes the principal thrust of her allegations to be true. Ratio |
She understands that it will not be possible to rely upon these unless they can be properly investigated but she will have great difficulty in agreeing that the father should resume unsupervised contact with A unless they are. Ratio |
(iv) The father also supports disclosure. Ratio |
He might instead have relied on the mothers inability to pursue the allegations without disclosure but he wishes to have them resolved. Ratio |
Not having seen the history of how and when Xs allegations were made, he does not accept the judges conclusion that they were not prompted by the mother. Ratio |
(v) The local authority now adopt a completely neutral stance as to disclosure. Ratio |
Roger McCarthy QC on their behalf accepts that if the material is not disclosed in these proceedings it would not be possible for the local authority to bring care proceedings to remove A from her mother unless the material could be disclosed in those proceedings. Ratio |
In other words, they accept that they cannot have it both ways and put all the burden of protecting A upon the mother without giving her the material with which to do so. Ratio |
The common law principles Ratio |
It is convenient first to look at the principles governing the issue at common law, before considering how these may have been affected by the implementation of the Human Rights Act 1998. STA |
The local authority claim public interest immunity for their records relating to X and her allegations. Ratio |
They are doing so because of the public interest in maintaining the confidentiality of information given to the authorities responsible for protecting children from abuse. Ratio |
That this is a class of information to which public interest immunity attaches has been established since the decision of the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. Ratio |
That case accorded to people who informed the authorities of allegations of child abuse the same protection as informants to the police and the gaming authorities. Ratio |
It is not the fact that the information is communicated in confidence which attracts the immunity, but the public interest in encouraging members of the public to come forward to help the authorities to protect children. Ratio |
That this may also protect an untruthful or malicious informant is the necessary price to be paid. Ratio |
Although D v National Society for the Prevention of Cruelty to Children was concerned with a neighbour who claimed to have witnessed the alleged abuse, rather than a victim, I can see no reason why the same rationale should not also apply to the victims of alleged abuse. Ratio |
That is not, of course, the whole story. Ratio |
The immunity is only the starting point, for without it there is no question that all documentation relevant to the proceedings must be disclosed. Ratio |
Public interest immunity is not absolute. Ratio |
The public interest in maintaining confidentiality must be balanced against the public interest in a fair trial, according to principles which have developed since the landmark case of Conway v Rimmer [1968] AC 910 required the court to strike that balance. Ratio |
If the public interest against disclosure prevails, the decision-maker, whether judge or jury, is not entitled to take the information into account in deciding the result of the litigation. PRE |
There is no hard and fast rule as to whether the same judge can continue to hear the case. PRE |
It is well-established that a judge may do so in a criminal case, but then the jury and not the judge are the finders of fact. PRE |
It may also be possible to do so in a civil case: see Berg v IML London Ltd [2002] 1 WLR 3271. PRE |
The well-established test of apparent bias will apply: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. PRE |
Are cases about the future care and upbringing of children any different? The whole purpose of such cases is to protect and promote the welfare of any child or children involved. PRE |
So there are circumstances in which it is possible for the decision-maker to take into account material which has not been disclosed to the parties. PRE |
As Lord Devlin put it in In re K (Infants) [1965] AC 201, 238, a principle of judicial inquiry, whether fundamental or not, is only a means to an end. PRE |
If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed. PRE |
He went on, at p 240, to approve the words of Ungoed Thomas J at first instance [1963] Ch 381, at p 387: 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. . . . PRE |
In general publicity is vital to the administration of justice. PRE |
Disclosure to the 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. PRE |
So when full disclosure is not made, it should be limited only to the extent necessary to achieve the object of the jurisdiction and no further. PRE |
Thus, while there was no absolute right for the mother to see the report made by the Official Solicitor as guardian ad litem for a ward of court, the discretion to refuse it was to be exercised occasionally and with great caution. PRE |
Lord Evershed had earlier set the bar extremely high when he said (at p 219) that a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant must otherwise ensue (emphasis supplied). PRE |
In In re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593, referred to by the Court of Appeal in this case as the starting point, Lord Mustill, at p 611, did not accept that Lord Evershed intended those words to be read literally as a standard applicable in every wardship case, let alone in adoption cases wh... |
These then provided that all reports were confidential, but that an individual could inspect any part of such report which referred to him, subject to the courts power to direct otherwise. PRE |
In Children Act proceedings, Lord Mustill preferred the broader principle enunciated by Glidewell LJ in In re B (A Minor)(Disclosure of Evidence) [1993] Fam 142 at p 155: Before ordering that any such evidence be not disclosed to another party, the court will have to consider it in order to satisfy itself that the disc... |
Thus Lord Mustill concluded, at p 614, that the presumption in favour of disclosure is strong indeed, but not so strong that it can be withheld only if the judge is satisfied that real harm to the child must otherwise ensue. PRE |
He went on, at p 615, to enunciate the principles which have been recited ever since: (i) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. PRE |
(ii) When deciding whether to direct that a party referred to in a confidential report in adoption proceedings should not be able to inspect the part which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child. PRE |
(iii) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if i... |
(iv) If the court is satisfied that the interests of the child point towards non- disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the mate... |
In the latter regard the court should take into account the importance of the material to the issues in the case. PRE |
It will thus be seen that these principles are designed to protect the welfare of the child who is the subject of the proceedings, to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child. Ratio |
If they were to be applied in this case, it is clear that there is little or no risk of harm to A if the material is disclosed. Ratio |
The risk is if the material is not disclosed and a wrong decision is reached as a result. Ratio |
The principles enunciated by Lord Mustill do not address whether it might be possible in Children Act proceedings to withhold information which is to be taken into account by the court from any of the parties on the ground that disclosure might cause harm to someone other than the subject child. Ratio |
In In re B, above, the proceedings were about a fathers contact with his 12-year-old son. Ratio |
His 15-year-old half-sister had made serious allegations of sexual abuse against her stepfather which the mother wanted the court to take into account without disclosing them to the father. Ratio |
As Glidewell LJ pointed out, at p 156, the order was sought, mainly if not entirely, for the protection of the half-sister and it was the sons welfare which was the courts paramount consideration. Ratio |
Even if it were suggested that in some way the son might be harmed by disclosure (though the suggestion was rather that having to keep his sisters allegations secret would be harmful to him), that possibility had to be weighed against the grave injustice which would result from non-disclosure. Ratio |
So even in a case where the third party was a child, it was the interests of the subject child which might have justified non- disclosure. Ratio |
We therefore have to look outside those authorities for the source of any power to withhold such information in the interests of a third party. Ratio |
As the common law stands at present, in the absence of a statutory power to do so, the choice is between the case going ahead without the court taking account of this material at all and disclosing it to the parties. Ratio |
The Human Rights Act STA |
To what extent, if at all, are these principles affected by the Human Rights Act 1998? In A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, the Court of Appeal accepted that the principles of non-disclosure might now have to be extended to other people whose Convention rights might be violated by disclosur... |
It is common ground that several Convention rights are, or may be, in play in this case. STA |
There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. STA |
The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. STA |
There are the article 8 rights of A, M and F to respect for their private and family lives. STA |
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