A Local Authority v A Mother & Ors

Disclosure is the norm in family proceedings where material may be relied on against a party. Non-disclosure is exceptional and requires a compelling case, ordinarily involving a real risk of death or really serious bodily harm. The court must assess the evidence rigorously and balance the child’s interests, including the need for the material to be tested, against the magnitude and gravity of the risk and the affected party’s right to respond.

Adult Article 8 rights may justify withholding information where the risk concerns harm to adults. Cultural or community background alone, without evidence of a relevant propensity for serious violence within the family, does not establish a sufficient risk to justify withholding otherwise relevant evidence.

Care proceedings concerned a child whose mother had disclosed alleged sexual relationships during a foreign holiday and had made comments suggesting gender or sexual ambivalence. The information was potentially relevant to her parenting capacity and to the father’s proposed presentation as a couple, but the mother and other female relatives feared serious violence or death if it became known to male family members.

The issue had been transferred by the designated family judge to the High Court. An expert risk assessment was proposed, but the father argued that there was no proper evidential basis for withholding disclosure. The central question was whether the feared consequences justified continuing to withhold material otherwise disclosable to a parent in care proceedings.

1. Applicable disclosure principles. The court applied the principles distilled by Lord Mustill in Re D (Minors) (ADOPTION REPORTS: CONFIDENTIALITY) [1996] AC 393, as set out for Children Act proceedings by Thorpe LJ in Re M (DISCLOSURE) [1998] 2FLR 1028 (CA). Fairness ordinarily entitles a party to material that may be used against them. The court must ask whether disclosure creates a real possibility of significant harm, weigh the child’s interests in disclosure and proper testing against the risk and gravity of harm, and then balance that conclusion against the affected party’s interest in seeing and answering the material. Non-disclosure must remain exceptional.
2. Adult harm. The principles continued to apply after the Human Rights Act 1998. As explained by Hale LJ in Re X (ADOPTIION: CONFIDENTIAL PROCEDURE) [2002] 2 FLR 476, adult Article 8 rights may justify non-disclosure where the risk concerns harm to adults rather than the child.
3. Assessment of risk. The alleged conduct could provoke anger or outrage, but the evidence showed no sufficient propensity for serious violence by the father or the relevant male family member. The fact that the family belonged to a particular community, and the possibility of community pressure, did not by itself establish a real risk requiring further investigation. The same conclusion applied to the allegations concerning gender or sexual ambivalence.
4. Order. The information was relevant to the mother’s capacity to provide stable and consistent care and to the father’s case. The court had not determined the truth of the allegations, but their relevance made them disclosable. Disclosure of all filed evidence to the father was directed, with the order stayed for two weeks to allow consideration of implementation and management of consequences.

The judgment does not state an appellate history. The disclosure issue was transferred from the designated family judge to the High Court for determination.