In re D (Minors) (Adoption Reports: Confidentiality)

A party in adoption proceedings has a strong presumptive right to inspect material which the court may use adversely. Under rule 53(2) of the Adoption Rules 1984, non-disclosure is exceptional.

The court must first identify a real possibility that disclosure would cause significant harm to the child. It must then assess whether the child's overall interests favour non-disclosure, considering both the value of testing the material and the likelihood and gravity of harm. Finally, it must balance that conclusion against the party's interest in seeing and answering the material, taking account of the material's importance. Non-disclosure requires a compelling case reached after rigorous examination; certainty that harm will occur is not required.

In re D (Minors) (Adoption Reports: Confidentiality) concerned contested applications by a father and stepmother to adopt two children. The natural mother opposed the applications. A guardian ad litem prepared a report containing sections about the children's wishes and feelings.

The County Court directed that two sections should not be disclosed to the mother. The Court of Appeal dismissed her appeal, reported at [1995] 1 W.L.R. 356. She appealed to the House of Lords.

The central issue was how a court should exercise its discretion under rule 53(2) of the Adoption Rules 1984 when procedural fairness favours disclosure but disclosure may harm the child. The House did not determine whether the particular sections should ultimately be disclosed.

1. Disposition. Lord Mustill delivered the leading speech. Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Lloyd of Berwick and Lord Nicholls of Birkenhead expressly agreed with his reasons. The House unanimously allowed the appeal and remitted the disclosure question to the County Court judge for a wholly fresh appraisal.
2. Presumption of disclosure. Per Lord Mustill, fairness ordinarily entitles a party to know and answer material which may be used adversely. This principle has particular force in adoption proceedings because an adoption order produces lasting and generally irreversible changes to the parental relationship. Rule 53(2) of the Adoption Rules 1984 recognises that confidentiality must not be carried to extremes.
3. Test under rule 53(2). The court must first decide whether disclosure creates a real possibility of significant harm to the child. If it does, the court must determine whether the child's overall interests favour non-disclosure. That assessment weighs the child's interest in proper testing of the material against both the likelihood and gravity of the feared harm. The court must finally balance the resulting case for non-disclosure against the party's interest in seeing and answering the material, including the importance of that material to the disputed issues.
4. Exceptional character. Per Lord Mustill, non-disclosure is the exception. The court must examine the asserted risk and gravity of harm rigorously and withhold material only where the case is compelling. Harm need not be certain. The language of burdens of proof is inappropriate because the issue is whether the known circumstances justify exceptional exercise of a discretion. Where the position remains uncertain, the likely importance of the material may be considered, although judicial assurances that it is innocuous may not remove a party's legitimate concern.
5. Authorities. The strict formulation attributed to Lord Evershed in In re K. (Infants) [1965] A.C. 201, under which real harm must otherwise ensue, did not govern adoption proceedings. That case concerned wardship, preceded the relevant rules and did not establish the universal standard attributed to the isolated passage. The balancing approach in In re B. (A Minor) (Disclosure of Evidence) [1993] Fam. 142 accorded substantially with the House's approach. The jurisprudence concerning articles 6 and 8 of the European Convention on Human Rights was also consistent with usual disclosure subject to special reasons based on the child's interests.
6. Subsidiary guidance. A guardian ad litem cannot promise confidentiality in terms which restrict the judge's discretion. The description of reports as confidential does not itself determine the application of rule 53(2). The House declined to define confidentiality more generally. Lord Mustill also considered it difficult to envisage proper disclosure in concurrent family proceedings of material withheld under rule 53(2) because of risk to the child.

1. House of Lords: Unanimously allowed the mother's appeal and remitted the disclosure question to the County Court judge for reconsideration under the principles stated by the House.
2. Court of Appeal: Dismissed the mother's appeal from the non-disclosure order. The leading judgment is reported at [1995] 1 W.L.R. 356.
3. County Court: His Honour Judge McNaught directed that two sections of the guardian ad litem's report should not be disclosed to the mother.