X, Re

Confidential material concerning an account given or retracted by a person outside family proceedings may be disclosed to the parties and the children’s guardian where withholding its detail creates an untenable informational imbalance and prevents the proceedings from being resolved effectively. The court must take account of the potential impact of disclosure on that person. Material disclosed within family proceedings remains confidential and must not be communicated outside the circle of permitted recipients.

The appeal arose from family proceedings before Jackson J concerning a child, A. Material existed describing accounts which X had given or retracted. The mother had learned X’s identity and had a brief encounter with her, but neither the mother nor the other parties knew the full detail of X’s account.

Jackson J had assessed the probity or value of the material and had characterised the potential impact of disclosure upon X as extreme. The Court of Appeal had to decide whether the material should nevertheless be disclosed to the mother, the father and the children’s guardian, or whether the appeal should be dismissed and the trial conducted by a judge who had not read it.

1. Appeal allowed. McFarlane LJ, delivering the court’s statement of its outcome, directed disclosure to the mother, the father and the children’s guardian of material describing any account which X had given or retracted concerning the matters in issue.
2. The mother’s limited knowledge placed her, the father and the proceedings in an untenable position. She adhered to the essential truth of what she had learned but lacked its detail. Continuing the proceedings while some people knew the material and none of the parties knew its full content created irresolvable tension and impaired the workable determination of the case.
3. Jackson J had indicated his assessment of the material’s probity or value. It was in the interests of the parties and the child that the mother, father and guardian should know whatever detail existed in X’s account.
4. The court took full account of X’s condition and the potential effect of disclosure upon her. It considered that the effect might not be as extreme as Jackson J had characterised it. In any event, the need to resolve the informational imbalance was the principal consideration supporting disclosure.
5. The court rejected the alternative of dismissing the appeal and directing a trial before a judge who had not read the material. That course would be unworkable in light of the positions of the mother and father at the final hearing and would create more difficulties than it resolved.
6. The disclosed material remained confidential within the family proceedings. No party could communicate it beyond those permitted to know it within the proceedings.

1. Court of Appeal (Civil Division): Allowed the appeal and ordered disclosure of material describing any account given or retracted by X to the mother, father and children’s guardian, subject to continuing confidentiality within the proceedings.
2. Principal Registry, Family Division: Jackson J had declined to direct the disclosure sought. No citation for that decision is stated.