J (A Child: Disclosure), Re (Rev 1)

Non-disclosure of material central to child welfare proceedings is exceptional. The court must balance the affected rights, examine the feared harm rigorously and permit non-disclosure only where strict necessity is compellingly demonstrated.

Disclosure has value independently of whether the maker of an allegation will later give oral evidence. A court must not allow concerns about compelling that evidence to determine the logically separate disclosure question. Where the trial judge has read core material withheld from the parties, that judge should not determine the substantive welfare dispute. Justice must be seen to be done.

No Convention right has automatic precedence. The court must focus intensely on the particular rights, necessity and proportionality, while recognising the heightened importance of unqualified rights.

A mother applied to vary an order permitting unsupervised contact between her daughter and the father after a local authority reported credible allegations that he had sexually abused a young person, X. X opposed disclosure of her identity and allegations. Medical evidence indicated that disclosure could seriously harm her already precarious mental and physical health.

Peter Jackson J refused disclosure after treating it as inseparable from whether X could be compelled to give evidence. The child's guardian appealed, contending that the approach prevented proper assessment of risk and impaired the guardian's ability to represent the child.

The central issues were whether disclosure and oral evidence should have been considered separately, how the competing Convention rights should be balanced, and whether the judge who had read the confidential material could fairly determine the contact application if it remained undisclosed.

1. The appeal was allowed unanimously. The balance favoured disclosure of X's identity and the records containing the substance of her allegations to the mother, father and children's guardian.

2. Disclosure and the later question whether X should give oral evidence were distinct issues. Disclosure enabled the parents and the child's professional representatives to understand, investigate and answer the factual context of the allegations. That value existed whether or not X could later be called. Peter Jackson J therefore erred by allowing his conclusion that compelling X to testify would be oppressive to dominate the disclosure decision.

3. It was premature to conclude that disclosure could produce nothing of evidential value. No investigation had occurred because of X's insistence on confidentiality. The parents and other adults might confirm or undermine the alleged factual context without X giving evidence.

4. Where a judge has read confidential material forming the entirety of the core issue, but the parties have not seen it, the same judge cannot proceed to determine the substantive welfare dispute consistently with justice being seen to be done. If disclosure were refused, the welfare hearing would have to be conducted by another judge who had not seen the material. This conclusion was specific to the facts and did not establish a blanket rule for public interest immunity cases.

5. The balancing exercise engaged X's qualified right to private life under Article 8 and the child and parents' rights under Articles 6 and 8. No right had automatic precedence. Although Article 3 rights have highlighted importance, disclosure alone did not engage X's Article 3 rights. The child's Article 3 interest marginally favoured disclosure because investigation might expose or dispel a risk of sexual abuse.

6. There was a real possibility that disclosure would cause significant harm to X. Nevertheless, the allegations were central to the entire contact dispute, and the state had already disclosed their gist, described them as credible and effectively caused the mother to bring proceedings. Non-disclosure had not been convincingly and compellingly justified and was not imperatively demanded. If the allegations could not be proved, risk would have to be assessed on the basis that the father did not present the alleged sexual risk.

1. Court of Appeal (Civil Division): Allowed the children's guardian's appeal unanimously and held that X's identity and the records of her allegations should be disclosed to the parents and guardian: [2012] EWCA Civ 1204.
2. High Court, Family Division: Peter Jackson J dismissed the parents' and child's application for disclosure in a reserved judgment handed down on 16 February 2012. No neutral citation is stated.
3. County court: The mother's application to vary the contact order was transferred to the High Court in May 2011 after substantial delay.