Judge: Thorpe, Hallet and McFarlane LJJ
Citation:  EWCA Civ 1204
Summary: Whilst not a COP case, this case merits mention because of the approach adopted by the Court of Appeal to the difficult question of the management of disclosure of sensitive information and, in particular, to the question of when a judge who has had sight of key material which has not been disclosed to all the parties should then go on to make substantive determinations.
In 2009, a father obtained an order providing for contact with his daughter. In 2010, social workers employed by the local authority with statutory responsibility for the daughter contacted the mother and informed her that a young person had made series allegations of sexual abuse against the father. The mother was not told any details of the allegations and was also 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 local authority considered that the allegations were ‘credible’ and advised the mother that she should not allow the daughter to have unsupervised contact with her father. The mother therefore applied to vary the contact order, the sole basis for her application being the limited information given to her by the social workers. In that application, the local authority sought to establish Public Interest Immunity attached in respect of certain documents, in particular (it appears) the identity of the young person, X, who had made the allegations, and the detail of those allegations.
In advance of the first substantive hearing, Peter Jackson J had received the documents in respect of which the local authority wished to establish PII. The father’s position was that he denied sexually abusing anyone, had not been informed of X’s identity and knew nothing about the substance of the allegations. He asserted that the mother had colluded with X to generate the allegations for purposes of obstructing contact with his daughter. He sought further information about X and her allegations. The daughter’s guardian asserted that she was unable to represent the daughter’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. X strongly resisted disclosure of her identity and of the substance of her allegations; she as acutely distressed by the effect of the proceedings on her already fragile state of health. All parties save for the father knew X’s identity (in the case of both the mother and the guardian thanks to accidental disclosure by the local authority); the mother knew nothing about the allegations save that they were serious and that the local authority considered them credible.
Peter Jackson dismissed the application for disclosure of further information about X and her allegations. In so doing, he proceeded on the basis that it was unrealistic to decide the application without considering the consequences were the application to succeed. In particular, he considered that it was inevitable that, once her identity was disclosed, a witness summons would be issued and the Court would promptly be considering whether or not X should be compelled to give evidence. He therefore considered himself justified in looking beyond the immediate issue and asking the question “where is this going?”
The guardian appealed. On appeal, McFarlane LJ (giving the lead judgment) considered as a first question the decision taken by Peter Jackson J to proceed as the trial judge on the issue of contact. In so doing, he observed that 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. They were said to be unlikely to provide a solid foundation for future arrangements for the daughter, A. Although these allegations are the only new material in the case that might justify a departure from the regime of unsupervised contact, the judge went on to say that nondisclosure of the material ‘will not automatically lead to the court making an order for unsupervised contact.’
McFarlane LJ declared himself fully satisfied that Peter Jackson J in the passages set out above had no intention of relying directly upon the undisclosed material to support some finding of the issue of sexual abuse, and that his comment about the outcome not automatically leading to unsupervised contact being no more than a proper judicial indication that all substantive welfare options remained open as he had done no more than decide the disclosure application. However, McFarlane LJ continued,
“there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.
38. Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.
39. Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong.
40. In the light of the conclusion that I have just described, the option of non-disclosure but the case remaining with the judge was not one that was properly open to the court in this case. I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.”
McFarlane LJ therefore indicated that the two options going forward were that the sensitive material (or a significant part of it) be disclosed to the parties and the case continuing in front of the judge who had heard the disclosure application or the sensitive material was not disclosed and the welfare determination not be disclosed and the welfare determination be conducted by a judge in a similar state of ignorance to that of the father.
McFarlane LJ then went on to conduct a review of the authorities relating to PII before turning to the decision taken by Peter Jackson J upon the disclosure application itself. He held that the approach adopted by the judge in linking the question of whether or not X could ever give oral evidence with the issue of disclosure was not only unsupported by previous authority but appeared to be contrary to previous case law (paragraph 73). He also found that Peter Jackson J’s characterisation of the probative value of the allegations as being unlikely to lead to resolution of the issue that they raise might be correct, that characterisation was based solely upon what X was reported to have said. No investigation having been conducted, McFarlane LJ could not therefore accept “Peter Jackson J’s assertion that ‘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’; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence” (paragraph 74).
Having found that Peter Jackson J fell into error, McFarlane LJ found that the Court of Appeal had to undertake the disclosure application itself. He found that the impact of disclosure upon X was the only substantial factor against disclosure, but that it was a very significant factor, both in terms of its importance in principle but also because of the serious consequences that might follow disclosure for X’s well-being. In terms of characterisation of the impact upon X in terms of the ECHR, McFarlane J agreed with “that the act of disclosure falls short of engaging Art 3 and does not amount to inhuman or degrading treatment. X’s right to a private life, which includes not only confidentiality of information relating to her life but also her ability to live that life as she would wish, is, however, plainly engaged. The state, in this context that is the court, may only act in breach of those rights in a manner which is compatible with Art 8(2), that is because it is necessary to do so and that what is proposed is proportionate to the identified need” (paragraph 80).
McFarlane LJ then went through and examined each of reasons given by Peter Jackson J for non-disclosure, before at paragraphs 91 ff concluding thus:
“91. Drawing matters together, the balance that has to be struck must accord due respect to X’s Art 8 rights on the one hand and the Art 6 and 8 rights of A and her parents, and the marginal impact of A’s Art 3 rights, on the other. In conducting the balance no one right attracts automatic precedence over another, however Art 8 rights are qualified whereas those under Art 6 are not qualified. The presence of A’s Art 3 rights is to be highlighted; they are of marginal impact on this issue, but their presence flags up the importance of the issue (serious sexual abuse) to which the disclosure relates. The evaluation of necessity and proportionality is to be conducted on the basis of the current situation, taking account of the fact that the state has already seen fit to breach X’s Art 8 rights by making the disclosure that has taken place to the mother and the state has effectively required the mother to commence these proceedings with a view to achieving orders that protect A from a risk that the local authority has described as credible. In terms of A’s interests and those of her parents, the undisclosed material is absolutely central to the issue of contact that has been brought before the court.
92. For the purposes of this evaluation it must be assumed that the local authority was justified in acting as it did in relation to A’s mother. Where the state has decided to breach X’s Art 8 rights to that degree, and where the fallout from that disclosure leaves the mother in the difficult position that she so clearly describes, only very exceptional circumstances are likely to justify the court, also acting as an arm of the state, in refusing full disclosure of the material to the mother and in turn to the father
and A’s representatives.
93. Adopting the words of Munby J in Re B (Disclosure to Other Parties), which were endorsed by this court in Re B, R and C, the case for non-disclosure must be ‘convincingly and compellingly demonstrated’ and will only be sanctioned where ‘the situation imperatively demands it’.
94. This is a hard and difficult decision. It is made so by the fact that the stakes are high on both sides of the equation. The description of X’s mental and physical health difficulties are towards the top end of the spectrum. The issues for A and her family arising from what X has said are similarly of great magnitude.
95. 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.
96. 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.”
Hallett and Thorpe LJJ agreed.
Comment: It is – sadly – not uncommon that very serious allegations are made in the context of (in particular) welfare applications in the COP. It is also not uncommon that contentions are advanced by a party holding information that disclosure of that information be withheld from another party on the basis of its adverse impact upon another (most frequently P). We would suggest that the guidance given in this case applies with equal force in the COP as it does in the Family Division (there being no material differences in the regimes that apply – cf the provisions of the First Tier Tribunal (Mental Health) Rules allowing for disclosure to legal representatives alone). In particular, we would echo the clear steer of the Court of Appeal that the dicta that justice must not just be done but be seen to be done applies with particular force where (for proper reasons) much of what happens can seem to happen behind closed doors.