A Mother v A Father & Ors

Relevant information in child proceedings should ordinarily be disclosed. Non-disclosure is exceptional and requires a compelling case. The court must strike a fair balance between the rights and interests affected while securing a fair trial.

Where disclosure may expose a person to death or serious physical harm, the court must rigorously investigate the nature, likelihood and gravity of that risk before undertaking the balancing exercise. It must consider the rights of everyone foreseeably affected, including non-parties. A court acts prematurely if it terminates an expert risk assessment and orders disclosure while a potentially grave risk remains unmeasured. The assessment should also inform whether partial disclosure or protective measures can secure fairness with less danger.

The mother appealed against Hedley J’s direction in care proceedings that sensitive evidence concerning her should be disclosed to the father. The decision was reported as [2009] EWHC 1574 (Fam). The mother, local authority and child’s guardian maintained that disclosure might expose the mother and other female family members to serious violence or ostracisation. They sought completion of an expert risk assessment before disclosure was determined.

The judge had initially authorised that assessment but later terminated it and ordered disclosure. The expert had said that serious violence could not yet be discounted and that interviews with family members were required. The appeal concerned whether the judge had rigorously examined the feared harm and properly balanced fair-trial requirements against rights under Articles 2, 3 and 8 of the European Convention on Human Rights 1950.

1. Appeal allowed unanimously. The disclosure directions were set aside. Mrs Hossain was authorised to interview such family members as she considered appropriate and to complete her risk assessment. The proceedings were to return to Hedley J promptly after completion of the report.

2. Per Wilson LJ, with whom Etherton and Sullivan LJJ agreed, non-disclosure of relevant evidence is exceptional and requires a compelling case. The court must rigorously examine the risk and gravity of the feared harm. Its decision must be informed by evidence sufficient to compare the serious complications of non-disclosure with the potentially grave consequences of disclosure.

3. The judge’s decision was premature. He had originally accepted the need for professional risk assessment. Nothing subsequently reduced that need. The expert instead reported that serious violence could not be discounted and that further interviews were necessary. The judge nevertheless terminated the assessment without adequately confronting that evidence. Past serious violence within the particular family was not a safe or exclusive criterion for predicting the response to the sensitive material.

4. Etherton and Sullivan LJJ emphasised that the court must strike a fair balance between all affected rights and interests while achieving a fair trial. Article 6 rights are absolute, but a fair trial does not invariably require disclosure of every relevant item. Article 8 rights are qualified. Rights under Articles 2 and 3 are unqualified, and a danger of vigilante physical punishment is therefore of the gravest concern.

5. The rights of the mother, sister and aunt had to be addressed separately. The absence of adequate evidence from the sister and aunt, and the failure to consider their position, meant that the judge lacked the material required to assess the risks. A proper assessment also had to consider protective measures, the possibility of partial disclosure and the relative importance of the information.

6. The request that the remaining proceedings be allocated to another High Court judge was refused. The father could be told that a proposed interview concerned material whose disclosure remained in issue, without revealing the material itself.

1. Court of Appeal (Civil Division): Allowed the mother’s appeal unanimously, set aside the disclosure directions and ordered completion of the expert risk assessment: [2009] EWCA Civ 1057.
2. High Court, Family Division: Hedley J terminated the risk assessment and directed disclosure of the sensitive evidence to the father: [2009] EWHC 1574 (Fam).
3. County Court and family proceedings court: The care proceedings began in the family proceedings court, were transferred to the county court and then transferred to the High Court for determination of the disclosure issue.