Re D (Minors)

The House of Lords held that in contested adoption proceedings there is a strong presumption in favour of disclosure to a party of any material in confidential reports which refers to that party. The court should begin with that presumption because fairness and the opportunity to answer adverse material are central to the hearing. Rule 53(2) of the Adoption Rules 1984 modifies the earlier practice of confidentiality but permits withholding only in exceptional cases. The judge must consider whether disclosure would involve a real possibility of significant harm to the child, assess the likelihood and gravity of any such harm, decide whether the child’s overall interests favour non-disclosure, and finally weigh that assessment against the parent’s interest in disclosure, having regard to the importance of the material to the issues. Non-disclosure is the exception and should be ordered only when the case for it is compelling.

This is an appeal from an order of the County Court refusing the natural mother access to two sections of the guardian ad litem's report in contested adoption proceedings concerning two children old enough to express views. The father and his wife (the proposed adopters) sought to dispense with the mother's consent. The guardian ad litem prepared a report; the county court (His Honour Judge McNaught) ordered that sections 11 and 13 (relating to the children's wishes and feelings) should not be disclosed. The mother appealed; the Court of Appeal (Butler-Sloss L.J.) dismissed the appeal. The matter then came before the House of Lords.

The House framed the issues as: (i) the proper approach under rule 53(2) of the Adoption Rules 1984 to an application by a party to inspect that part of a confidential report which refers to them; (ii) the weight to be given to the principle of fairness and disclosure in adoption cases; and (iii) the circumstances in which non-disclosure may be justified because of risk to the child.

The House concluded that a strong presumption in favour of disclosure should be the starting point because of the centrality of the right to know and answer adverse material. That presumption is, however, rebuttable where there is a real possibility of significant harm to the child. The court must examine both the likelihood and the gravity of harm, consider whether the child’s overall interests are better served by non-disclosure, and then weigh those considerations against the parent’s interest in seeing and replying to the material, taking account of its importance to the case. The House held that the county court judge had given insufficient weight to the presumption in favour of disclosure and remitted the matter for fresh consideration.

Procedural posture: appeal by the natural mother from County Court, dismissed by Court of Appeal, allowed by the House of Lords and remitted to the County Court for reconsideration.

Appeal allowed. The House held that there is a strong presumption in favour of disclosure under rule 53(2) of the Adoption Rules 1984 and that the county court judge erred by giving no weight to that presumption. The judge must first consider whether disclosure would involve a real possibility of significant harm to the child, then whether the child’s overall interests favour non-disclosure, and finally weigh that against the parent’s interest in disclosure. The matter was remitted to the county court for fresh exercise of its discretion in accordance with these principles.

County Court (His Honour Judge McNaught) made an order on 26 September 1994 that two sections of the guardian ad litem's report should not be disclosed. The mother appealed to the Court of Appeal; the appeal was dismissed (reported at [1995] 1 W.L.R. 356). The mother then appealed to the House of Lords, which allowed the appeal and remitted the question to the County Court for reconsideration.