Re X (Children)

When prospective adopters use the confidential serial-number procedure, neither disclosure nor anonymity has automatic priority. The court should apply the three-stage Re D test, while also considering the relevant interests of the adults. It must balance effective participation and proper testing of the evidence against family and private life, the risk of harm to the child and the child’s welfare.

Fairness is contextual. A restriction upon an adversarial trial must pursue a legitimate aim and be proportionate. An anonymity decision must remain open to reconsideration if the parties’ positions change or the trial judge cannot decide the issues and give adequate reasons without disclosure.

The birth parents appealed against a circuit judge’s refusal to permit their solicitor to disclose the prospective adopters’ identity. Unknown to the parents, the adopters were the foster carers who had looked after the sibling group since its removal from home. The solicitor knew the truth, but the adoption proceedings were being conducted under the confidential serial-number procedure.

The parents opposed adoption and sought renewed direct contact. The prospective adopters and local authority supported continued anonymity because disclosure might lead to disruption and further relocation. The children’s guardian supported disclosure. The central issue was how to balance trial fairness and effective parental participation against the children’s welfare and the family and private lives of all concerned.

1. Appeal dismissed. Lady Justice Hale delivered the joint judgment of the court. The circuit judge’s exercise of discretion was not plainly wrong. Although continued anonymity would create formidable forensic difficulties, the parents’ legal representatives could receive all the material, take instructions and advance the parents’ case. The children’s compelling interest in preserving their secure and successful placement outweighed those difficulties.

2. The three-stage test derived from Re D (Adoption Reports: Confidentiality) [1996] AC 593 remained the correct framework. The court must assess whether disclosure creates a real possibility of significant harm; whether the child’s overall interests favour non-disclosure after balancing proper testing of the material against the likelihood and gravity of harm; and, if so, whether that consideration outweighs the natural parents’ opportunity to see and answer the material. The relevant interests of the adults must also be included.

3. In this context there was no predetermined starting point. The traditional anonymity of adoption proceedings counterbalanced the ordinary assumption that parties should know everything known to the court. The ultimate question was one of fair balance.

4. The fair-trial right under Article 6 of the European Convention on Human Rights is absolute, but its practical requirements depend upon context. Any departure from the usual adversarial process must pursue a legitimate aim and be proportionate. Protecting these vulnerable children was a legitimate aim. Article 8 required consideration of the family and private lives of the children, their birth family and their prospective adoptive family.

5. The order preserving anonymity could not be fixed permanently. The trial judge should reconsider disclosure if movement in the parties’ positions might resolve the dispute, or if the issues could not fairly be decided and explained in a reasoned judgment without revealing the truth.

6. A possible intermediate course was disclosure supported by injunctions preventing unauthorised contact. Because the county court’s powers were uncertain, the proceedings were to be transferred to the High Court so that an appropriately authorised adoption judge could consider that course if it became suitable during the hearing.

• Court of Appeal (Civil Division): By a joint judgment, dismissed the parents’ appeal and directed transfer of the proceedings to the High Court for hearing by an appropriately authorised adoption judge.
• County Court: On 15 February 2002, a circuit judge refused permission for the parents’ solicitor to disclose the prospective adopters’ identity, permitted identifying material to be disclosed to the solicitor, and listed the adoption and contact proceedings for final hearing.