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There is also the article 8 right of X to respect for her private life. STA |
Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others. STA |
However, Miss Morgan on behalf of X has relied principally (as did the mother in A Local Authority v A) upon her article 3 right not to be subjected to inhuman or degrading treatment. ARG |
Requiring X to give evidence in person would, she argues, amount to treatment for this purpose, but so too would the act of disclosure because of the effect that it would have upon X. Dr W was specifically asked to distinguish between the effect of disclosure and the effect of giving evidence (see para 6(vi) above). AR... |
She replied that disclosure alone would potentially be detrimental to her health. ARG |
She pointed out that her condition had deteriorated considerably recently, to such an extent as to be life-threatening. ARG |
Disclosure would inevitably subject her to further stress. ARG |
There was therefore a significant risk that exposure to further psychological stress would put her at risk of further episodes of illness. ARG |
That, argues Miss Morgan, is sufficient to bring the effects of the treatment up to the high threshold of severity required by article 3. ARG |
X has therefore an absolute right not to be subjected to it. ARG |
The other parties to these proceedings question whether mere disclosure can amount to treatment within the meaning of article 3. Ratio |
They also support the conclusion of the Court of Appeal that the effects of disclosure alone would not reach the minimum level of severity required to violate article 3. Ratio |
Indeed, Peter Jackson J, while concluding that requiring X to give evidence would probably reach that high threshold, did not hold that disclosure alone would do so. Ratio |
He did not say that it would not, but it is clear, not least from the questions he asked of Dr W, that he was fully alive to the distinction between the effects of disclosure and the effects of giving evidence. Ratio |
If her argument on article 3 is not accepted, Miss Morgans secondary case on behalf of X is that the invasion of her private life which would result from disclosure of this material in these proceedings is so grave that it would be disproportionate to disclose it. Ratio |
The court should therefore contemplate some form of closed material procedure, which would enable the material to be put before the court and tested, without disclosing either her identity or the details to the other parties. Ratio |
Discussion Ratio |
If we were dealing with the common law principles alone, the answer would be clear. Ratio |
There is an important public interest in preserving the confidence of people who come forward with allegations of child abuse. Ratio |
The system depends upon the public as its eyes and ears. Ratio |
The social workers cannot be everywhere. Ratio |
The public should be encouraged to take an interest in the welfare of the children in their neighbourhoods. Ratio |
It is part of responsible citizenship to do so. Ratio |
And that includes victims of historic child abuse who have information about the risks to which other children may now be exposed. Ratio |
But many of these informants will not be required to give evidence in order to prove a case, whether in criminal or care proceedings, against the perpetrators of any abuse. Ratio |
Their information will simply trigger an investigation from which other evidence will emerge. Ratio |
Their confidence can be preserved without harming others. Ratio |
In this case, however, that is simply not possible. Ratio |
We do not know whether A is at risk of harm from her father. Ratio |
But we do know of allegations, which some professionals think credible and which would, at the very least, raise the serious possibility of such a risk. Ratio |
Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which her father may present to her or can resume her normal relationship with him. Ratio |
That simply cannot be done without disclosing to the parents and to the Childrens Guardian the identity of X and the detail and history of the allegations which she has made. Ratio |
The mother can have no basis for seeking to vary the arrangements for A to have contact with her father unless this is done. Ratio |
If this were an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie. Ratio |
It is, of course, possible that the harm done to an informant by disclosing her identity and the details of her allegations may be so severe as to amount to inhuman or degrading treatment within the meaning of article 3. Ratio |
The evidence is that X suffers from a physical illness which is at times life-threatening and that her condition deteriorates in response to stress. Ratio |
The father does himself no credit by belittling this. Ratio |
There was some discussion about whether we were here concerned with the duty of the state to take positive steps to protect her from harm (under the principles explained in Osman v United Kingdom (1998) 29 EHRR 245) or with the duty of the state to refrain from subjecting her to harm. Ratio |
As we are here considering the actions of the state whether the state should disclose to others information which she gave it in confidence and, in future, whether the state should compel her to give evidence in these proceedings I have no doubt that we are here concerned with the primary, negative, duty of the state t... |
However, when considering what treatment is sufficiently severe to reach the high threshold required for a violation of article 3, the European Court of Human Rights has consistently said that this depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of it... |
The court has also stressed that it must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment: para 92. Ratio |
Thus the legitimate objective of the state in subjecting a person to a particular form of treatment is relevant. Ratio |
A well- known example is medical treatment, which may well be experienced as degrading by a patient who is subjected to it against his will. Ratio |
However, A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading: Juhnke v Turkey (2008) 49 EHRR 534, para 71, citing Herczegfalvy v Austria (1992) 15 EHRR 437, para 82. Ratio |
Obviously, the ends do not justify the means. Ratio |
But the context in which treatment takes place affects the severity of its impact. Ratio |
The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her. Ratio |
I conclude therefore, in agreement with the Court of Appeal, that to disclose these records to the parties in this case will not violate her rights under article 3 of the Convention. Ratio |
However, that may not be the end of the matter, for to order disclosure in this case would undoubtedly be an interference with Xs right to respect for her private life. Ratio |
She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. Ratio |
She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. Ratio |
She had no choice. Ratio |
Clearly, her rights are in conflict with the rights of every other party to these proceedings. Ratio |
Protecting their rights is a legitimate aim. Ratio |
But the means chosen have to be proportionate. Ratio |
Is there, therefore, some means, short of full disclosure, of protecting their rights? Ratio |
It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents interests, but not to the father himself. PRE |
It faces two formidable difficulties. PRE |
The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531. PRE |
That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. PRE |
It is arguable that a greater latitude may be allowed in children cases where the childs welfare is the courts paramount concern. PRE |
But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. PRE |
The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. PRE |
We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. PRE |
The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. PRE |
There may be cases in which this can be done by offering him a gist of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. PRE |
In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. PRE |
From this information it is inevitable that Xs identity will be revealed. PRE |
Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case. PRE |
The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, Xs privacy rights are not a sufficient justification for the grave compromise of the fair trial ... |
It does not follow, however, that X will have to give evidence in person in these proceedings. Ratio |
Understandable though it was for Peter Jackson J to ask himself where is all this leading us?, in a case such as this it is only proper and sensible to proceed one step at a time (as was done in A Local Authority v A) and to assess and reassess the competing rights as matters unfold. Ratio |
As the Court of Appeal said, disclosure may be enough to resolve matters either way. Ratio |
If, as Peter Jackson J thought, disclosure will not be enough there would be a number of options available to resolve matters. Ratio |
If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. Ratio |
There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Ratio |
Family proceedings have long been more flexible than other proceedings in this respect. Ratio |
The court has power to receive and act upon hearsay evidence. Ratio |
It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Ratio |
Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. Ratio |
If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations, perhaps supplemented with written questions put to her in circumstances approved by Dr W. On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. R... |
It is not a requirement that the father be able to see her face. Ratio |
It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. Ratio |
The courts only concern in family proceedings is to get at the truth. Ratio |
The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. Ratio |
It is certainly not to compound any abuse which may have been suffered. Ratio |
I would therefore dismiss this appeal and uphold the order for disclosure made by the Court of Appeal. RPC |
It is usual to make no order for costs in cases about the care and upbringing of children. Ratio |
That will be the order of this court unless any party makes submissions to the contrary within seven days of this judgment. Ratio |
Postscript Ratio |
I cannot leave this troubling case without voicing my disquiet at the length of time it took for the first instance decision on disclosure to be made. Ratio |
The mothers application to vary the contact order was made in May 2010. Ratio |
The District Judge made a disclosure order in July 2010 and the local authority challenged that order that same month. Ratio |
The fathers contact was reduced in September, as a temporary measure. Ratio |
But it was not until May 2011 that the case was transferred to the High Court and not until September 2011 that it came before Peter Jackson J for a public interest immunity hearing at which X was represented. Ratio |
Obtaining the medical report took another three months. Ratio |
Nor has the appellate process been as speedy as it might have been. Ratio |
But in retrospect it should have been obvious at the outset that the stance taken by the local authority raised difficult questions of law and fact which required speedy resolution, principally in the interests of A but also in the interests of her parents and of X. The contact arrangements ordered in February 2009 hav... |
The parties deserve better of the family justice system than this. Ratio |
This appeal concerns the interpretation and application of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act). Ratio |
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