In the matter of A (a child)

Summary: The Supreme Court considered an appeal against the decision of the Court of Appeal ([2012] EWCA Civ 1204) in which McFarlane, Thorpe and Hallett LJJ had held that the identity of an individual (X), the mother of a little girl (A), who had made serious allegations of sexual abuse against A's father and the records relating to those allegations should be disclosed to A's mother, A's father and A's children's guardian. The question of disclosure arose in the context of family proceedings concerning contact between A and A's father which had been suspended in light of the allegations made by X. The Local Authority claimed Public Interest Immunity in respect of the records at issue and disclosure was further resisted by X.

Unlike the Court of Appeal and the High Court, the Supreme Court did not have sight of the records at issue. X continued to resist disclosure on the grounds that it would violate her Article 3 ECHR rights as further exposure to psychological stress risked causing her medical complications. Alternatively, she contended that disclosure would amount to a disproportionate invasion in to her private life. The mother, father and A's children's guardian supported disclosure and the Local Authority adopted a neutral stance.

The Supreme Court (Lady Hale giving the lead judgment) reviewed the common law principles relating to PII as claimed by the Local Authority and noted that immunity is not absolute in nature; where appropriate, the Court must strike the balance between the right to a fair trial and the interest in maintaining confidentiality. Whilst the existing authorities did not address the question at issue, namely the circumstances in which disclosure could be refused in the interests of a third party (X), were this a case in which common law principles alone fell to be considered, Lady Hale noted that it was clear that the public interest would weigh in favour of disclosure. The allegations could not be properly investigated in the absence of disclosure being granted.

Lady Hale went on to consider the effect of the Human Rights Act 1998. In relation to the submission that disclosure would amount to a violation of X's Article 3 rights, the Supreme Court accepted that it was possible in principle that the revelation of an individual's identity could have a sufficiently detrimental impact on their well-being so as to amount to inhuman or degrading treatment. However, the legitimate interests of the State in subjecting an individual to such treatment are also relevant and on the facts of the particular case, X was receiving specialist treatment which would mitigate the severity of the impact upon her. Accordingly, the claim based on Article 3 failed.

As to the question of X's right to privacy and the submission (advanced on behalf of X) that the material could be handled through some closed procedure, the inroads in to the rights to a fair trial and to a family life of the parties to the proceedings that would ensue were such that X's rights were not sufficient justification for refusing disclosure. In reaching this conclusion, the Supreme Court emphasised the difficulties associated with a ruling that a closed procedure could be adopted in this type of proceedings and the deficiencies that would be associated with evaluating the closed material on the specific facts.

The Court went on to hold that whilst it would uphold the decision of the Court of Appeal to grant disclosure, this did not equate to ruling that X would be required to give evidence in person. It would only be sensible in a case such as this to proceed one step at a time. In the event that a party wished to call X to give oral evidence, it would be necessary to assess the competing rights at they evolved. It would be very unlikely that it would ever be appropriate for the father to question X if he remained a litigant in person.

Comment: This decision confirms the approach adopted by the Court of Appeal in favour of disclosure of allegations of abuse notwithstanding the potentially serious impact of such disclosure on the third party (alleged) victim.

The issues that arose in this case have clear parallels with issues that arise not infrequently in welfare proceedings in the COP. We would welcome the emphasis on the need to ensure that a proper investigation of such allegations can been undertaken and the recognition that there is a strong link between the adequacy of such an investigation and the extent to which the parties concerned have been informed of the case they must meet.

Equally, the conclusion that it is necessary to separate the question of disclosure from the question of whether the alleged victim should be required to give oral evidence is to be welcomed, as is the explicit recognition that the balance of competing rights can and often will evolve and it may not be appropriate to resolve the two issues simultaneously. Finally, the decision stands as a clear endorsement of the cardinal importance of judges only determining cases upon the basis of evidence which has been seen by all parties. This is a factor which carries particular weight, we might suggest, in the context of Court of Protection in the face of the continuing (if unjustified) charge that it is a 'secret' Court.