Judge: Roberts J
Citation:  EWHC 1123 (Fam)
This case concerned a 15 year old boy (I) in care proceedings. He revealed certain sensitive information about himself to professionals. His strong wish was that the information should not be disclosed to his parents and stepmother. I’s guardian made an application to restrain the local authority from disclosing to I’s parents the information which I had shared with professionals. I’s father and stepmother opposed the application. The court expressed the view that it was difficult to see how the information had any relevance to the issues to be decided. However, the court was prepared to assume that it had some tangential relevance and to apply the balancing test.
On one side of the balance was whether disclosure of the information would involve a real possibility of significant harm. The court was satisfied that there was a clear risk that the consequences of disclosure of the material might result in I’s disengagement from the professionals who had provided him with guidance and support since his reception into care. It was essential that I believed that he could repose trust and confidence in those professionals and the care and support they would be providing. Moreover, any prospect of repairing the relationship between I and his father would inevitably involve some therapeutic input from professionals. It would be harmful to I if the chance to restore some form of relationship with his father was jeopardised because of disclosure of information which I regarded as confidential.
The next stage of the balancing exercise was whether the overall interests of I would benefit from non-disclosure. At this stage, the court had to weigh the interests of I in having the material properly tested and the magnitude of the risk that harm would occur and the gravity of that harm. As the court had already indicated that the information was of doubtful relevance there was little benefit to I in ventilating the material before the court. If I’s wishes were overruled, the distress in relation to disclosure to his parents would be compounded by the knowledge that these very private matters might be the subject of forensic scrutiny and debate in court. The distress might compound fears about maintaining an open relationship in future with professionals who were charged with responsibility for his wellbeing. There was ample evidence to substantiate the positive benefits which had already flowed from I’s ability to confide in others. The court found that both the magnitude of the risk of the harm occurring and the gravity of that harm would be substantial and significant. The balance at this stage clearly fell in favour of non-disclosure.
The final step was to weigh up the interests of the respondents (I’s father and stepmother) in having the opportunity to see and respond to the material. This involved a rigorous consideration of the engagement of their Article 6 and Article 8 ECHR rights. The court decided that whilst the respondents’ Article 8 rights were engaged, they could not take precedence over I’s Article 8 rights and I was clearly expressing a wish for no communication with his father or stepmother. As to the respondent’s Article 6 rights, the court could had already decided that the information was of tangential or minimal relevance and would not impact upon the outcome of the proceedings or future planning for I. The court’s clear conclusion was that the harm which would be caused by disclosure of information which had little, if any, relevance to the issues would be wholly disproportionate to any legitimate forensic purpose. The information would therefore not be disclosed to I’s parents.
The court in this case provided some helpful general guidance as to the proper approach to be taken when balancing competing interests in relation to disclosure of sensitive information. The court placed particular weight on the fact that I had “expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise.” Such an approach resonates with section 4(6) of MCA which places an obligation on the decision maker to take into account P’s wishes and feelings so far as reasonably ascertainable when making any best interests decision.