Clare Ciborowska comments on the case of Re J (A Child: Discolsure).
This is a case that concerned private law proceedings between A and her mother (M) and father (F). The parents separated when A was 6 months old in 2002 and the father returned to his native Australia. After a succession of contact orders made in the County Court a final order was made in February 2009 Providing for A to spend two weeks with her father in February and four weeks in the summer.
In March 2010 local authority (LA) social workers contacted the mother and informed her that a young person (‘X’) had made serious allegations of sexual abuse against the father. The mother was not told any detail of the allegations and was told that the young person did not wish her identity to be revealed to any person. The social workers did, however, tell the mother that the LA considered that the allegations were ‘credible’ and advised the mother that she should not allow A to have unsupervised contact to the father.
In May 2010 M made an application to vary the contact order based on the information she had been given by the LA. The question of whether X’s identity and/or details of the allegations should be disclosed was raised and was considered at numerous preliminary hearings in the County Court before finally being transferred to the High Court.
Proceedings in the High Court
The matter came before Mr Justice Jackson sitting in the High Court in May 2011. X was joined as an intervener and a children’s guardian was appointed and the matter was dealt with on submissions at a hearing in January 2012.
The parents and the Guardian sought disclosure of X’s file. The LA took a neutral position, mindful of its duties to X and A, and X sought permission to obtain a psychiatric report as to the impact upon her of disclosing her identity and details of the allegations.
Dr W, X’s treating psychiatrist, prepared a report for the court which concluded that disclosure of her allegations would be detrimental to her health as would being called as a witness at any hearing on the allegations.
Dr W in fact prepared two reports, A full report for the court reviewing X’s medical and psychiatric records in detail, describing her interview, and giving her opinion and answers to the questions raised and a condensed version for disclosure to the parties, omitting identifying information, but setting out her opinion and answers in identical terms.
Dr W’s opinion was that
X has a long history of repeated presentations with medically unexplained symptoms commencing in early childhood. Medically unexplained symptoms (i.e., symptoms for which no physical cause can be found) are often a manifestation of underlying psychological distress although the person presenting might not recognise this. … Most recently, X has experienced episodes of physical illness which have at times been life-threatening
At the conclusion of the hearing the parties’ positions were summarised as:
- F denied sexually abusing anybody. The interests of A must come first and there must be a trial attended by X.
- M described herself being torn between the need to protect A and the reluctance to add to the pressure on X.
- X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court.
- A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.
- The local authority took a neutral stance.
The Decision of the High Court
Jackson J found that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.
In respect of the question of X attending as a witness Jackson J concluded that such a course would be ‘oppressive and wrong’. He then went on to conclude that the balance fell against general disclosure of X’s personal and medical history.
In respect of the disclosure of X’s identity and allegations the judge held that the decision was finely balanced in that on the one hand, the prospect of a parent being denied normal contact with a child on the strength of undisclosed allegations from an anonymous source is deeply troubling and could only be entertained in compelling circumstances. But on the other hand the judge concluded that it was a highly unusual situation and that it was not possible for information about X’s identity and allegations to be disclosed to the parties. The judge gave his reasons as:
- I accept the medical evidence about the potentially serious effect of disclosure on X’s health.
- The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.
- X’s identity and her allegations are inextricably intertwined.
- For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.
- The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.
The Court of Appeal
The appeal was brought by A’s Guardian. The main basis for the appeal was that:
The judge concluded that X’s allegations would not be subject to a fact finding process. As a result the court became disabled from adjudicating upon the potential dangers to A arising from contact with her father. The court thereby failed to accord paramount consideration to A’s welfare and prevented itself from making an informed decision on the risk of harm to A in CA 1989, s 1(3)(e).
The court of appeal then reviewed the line of authority on non-disclosure and quoted a passage from the case of Re B, R and C (Children)  EWCA Civ 1825 which held:
Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld.
The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.
In the case of Re B (Disclosure to Other Parties)  2 FLR 1017, which was upheld by RE B, R and C, the Court of Appeal dismissed the mother’s appeal against disclosure and observed that:
Non-disclosure was sought mainly, if not entirely, for the protection of the complainant, yet it was the subject child’s welfare which was the paramount consideration when considering whether or not contact should take place.
Court of Appeal Judgment
In terms of the expert evidence the court of appeal held that:
The only expert evidence relating to X’s psychological condition comes from Dr W, who, as X’s treating clinician, is not in the same position of professional independence as would be the case if a forensic expert had been appointed. Dr W was not called by any party and the court proceeded on the basis of her written reports. That said, this court must accept, as did Peter Jackson J, the medical evidence as to the potentially serious effect that disclosure would have on X’s health.
The court identified that:
The impact of disclosure on X is the only substantial factor against disclosure in this case. It is however a very significant factor both in terms of its importance in principle but also because of the serious consequences that may follow disclosure for X’s wellbeing.
And further that:
What is under consideration in these proceedings amounts to much more than that which is encompassed in the one word ‘contact’ or the conduct of a ‘fair trial’ as an isolated concept. There is a choice to be made here between the previous liberal contact regime, limited only by the impact of geographical distance, and a severely restricted level of contact or even a total fracture in the relationship between A and her father. Overlaying the issue of contact is the fact that allegations of serious child sexual abuse have been made and A’s mother has been encouraged to believe that the father had indeed perpetrated serious abuse, without having any idea of what is alleged. The father is entitled to fear that his daughter, and the wider family, will hence forth approach life on the basis that he is a ‘paedophile.
In reaching its decision the Court of Appeal held:
In answer to the questions posed within structure established by Lord Mustill in Re D:
a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;
b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;
c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.
For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian..
This is a very interesting case giving rise to a number of extremely important factors when considering the balancing exercise between disclosure and non-disclosure. The court of appeal highlighted that the rights of A and her family to have the opportunity to scrutinise the material, the substance of which was the only reason that would potentially prevent contact between A and her father taking place unsupervised, should be given more weight in the circumstances of this case. Ultimately the court of appeal held that the entire case depended on the substance and nature of the allegations and that because of this, it was essential that information about the allegations be disclosed and tested, notwithstanding the likely harm that would be caused to X.
The line of authority in such cases shows a clear view that any case for non-disclosure of material that is central to the court’s decision and the ultimate welfare concerns must be compelling and that orders for non-disclosure are only to be made if it is imperative to do so.