A County Council v SB & Ors

Disclosure is the normal rule in family proceedings. Withholding relevant material requires exceptional circumstances. The court must balance the parties’ ECHR Article 6 right to a fair hearing against any sufficiently established risk to another person’s Article 2 or Article 3 rights. In cases involving forced marriage or honour-based violence, the balance may exceptionally favour non-disclosure. Experts in Children Act proceedings cannot receive relevant information in confidence from a party or witness. Such material should ordinarily be disclosed to the court and, subject to the court’s assessment of the competing rights and risks, to the other parties.

A County Council brought care proceedings concerning a nearly 17-year-old girl. The County Court proceedings included allegations of honour-based violence and related criminal proceedings. An expert had received further information from the girl and others, had given assurances of confidentiality, and had relied on the information in a second report. The disclosure issue was transferred to the High Court. The question was whether the second report and its underlying information should be disclosed to the parties, notwithstanding the potential risk to the girl and the assurances of confidentiality.

1. Order. The expert’s second report was to be disclosed in full to all parties. Disclosure to the police was deferred for consideration by the District Judge. The parties’ advocates were subject to a proviso against onward disclosure beyond themselves, subject to the court’s order.
2. Disclosure is the rule and non-disclosure the exception. The governing principle is that each party must have an opportunity to answer adverse material which the court may take into account. In proceedings concerning children, the court nevertheless has a discretion to withhold disclosure in exceptional circumstances: D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 and Official Solicitor v K [1965] AC 201.
3. The relevant balancing exercise required consideration of the parents’ Article 6 rights against the risk that disclosure might cause harm to the child, including a risk engaging Article 2 or Article 3. On the evidence, the Article 6 rights outweighed the risk. Disclosure would enable effective cross-examination of the expert and assist the District Judge in applying the overriding objective. The conclusion was fact-sensitive, and there may be honour-based violence cases in which the balance favours non-disclosure.
4. An expert in Children Act proceedings cannot receive relevant information in confidence. Relevant information must ordinarily be shared with the court and the other parties. Confidentiality means confidentiality of the court papers and proceedings, not a private assurance that relevant material will be withheld from those entitled to answer it.
5. Where disclosure may put a witness or information source at risk, the material should first be disclosed fully to the court. The court must then decide whether Article 6 requires disclosure to the parties. The approach discussed in Re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam) and Re B (Disclosure to other parties) [2001] 2 FLR 1017 was applicable in principle.