KM v Lambeth London Borough Council

In care proceedings, relevant evidence should be disclosed where access to it is necessary to give instructions and enable effective testing of a central credibility issue. The court must balance that need against harm caused by disclosure, including emotional trauma and the risk of unauthorised dissemination. Such harm will not justify withholding evidence where it cannot outweigh the need for the evidence to be properly probed and evaluated in the interests of the parties and the child. Full disclosure may remain subject to an injunction against onward disclosure, backed by a penal notice.

Care proceedings concerned a child whose separated parents each sought sole care. The mother sought to rely on a psychiatric report prepared for immigration purposes, but asked that it be withheld from the father because of the risk that he would disclose sensitive personal information outside the proceedings. Hedley J found the report relevant and ordered disclosure of specified passages only, together with an injunction restricting onward disclosure.

The father appealed, arguing that the entire report was necessary to challenge the mother’s credibility at the fact-finding hearing. The central issue was whether the whole report should be disclosed despite the alleged risk of misuse.

The Court of Appeal, in a unanimous judgment delivered by Black LJ, with Thorpe LJ and Moore-Bick LJ agreeing, allowed the appeal.

1. The report had been found relevant to the fact-finding and welfare issues. Given the potentially pivotal nature of the mother’s allegations, the father required access to the report as a whole so that he could give instructions on the account recorded in it and his legal representatives could explore the issues without serious logistical difficulty.
2. The court balanced the need for the evidence to be properly probed and evaluated against the harm alleged by the mother. Emotional trauma and embarrassment caused by the dissemination of intimate information did not outweigh the need for effective scrutiny. The asserted deterrence of witnesses and possible consequences for the child carried little or no weight on the evidence.
3. The court did not need to determine whether the father had previously disclosed other case material. Even assuming that allegation to be correct, the resulting risk of improper dissemination did not justify withholding the report in the circumstances.
4. Full disclosure could coexist with protective measures. The injunction preventing the father from disclosing the report to anyone other than his legal advisers remained in force and was to be backed by a penal notice, with contravention exposing him to imprisonment.
5. The order requiring only limited disclosure was discharged and replaced by an order for disclosure of the entire report. The remainder of Hedley J’s order was left unamended.

• Court of Appeal (Civil Division): Allowed the father’s appeal and ordered disclosure of the entire psychiatric report, while maintaining the injunction against onward disclosure.
• High Court, Family Division, Principal Registry: Hedley J ordered disclosure of specified passages only, subject to an injunction restricting disclosure to persons outside the parties’ legal advisers.