In the matter of A (A Child)

The Supreme Court was required to balance public interest immunity for confidential allegations of historic child sexual abuse against the need to investigate and test those allegations in family proceedings concerning the future contact arrangements for a child (A). Key legal principles applied included the common law doctrine of public interest immunity (as explained in D v National Society for the Prevention of Cruelty to Children and Conway v Rimmer), the children-law authorities on disclosure in wardship and Children Act proceedings (including In re D and In re B), and the Convention rights incorporated by the Human Rights Act 1998, principally article 3 (prohibition of inhuman or degrading treatment) and article 8 (right to respect for private and family life).

The Court held that, on the evidence before it, disclosure of the local authority records identifying X and setting out her allegations would not amount to treatment reaching the high threshold of article 3. The interference with X's article 8 rights was justified because nondisclosure would gravely compromise the fair trial and family life rights of A and her parents and would prevent proper investigation of the risk to A. A closed material procedure was not appropriate: there was no power in ordinary family proceedings to adopt such a procedure in a way that would meet minimum requirements of a fair hearing in this case. The Court therefore dismissed the appeal against disclosure, while recognising precautions and alternative methods for taking the evidence of a vulnerable witness.

Background and parties:

• A, born in 2002, lived with her mother (M); her father (F) lived in Australia and had existing contact orders. X is a vulnerable young adult who confidentially alleged that, when she was a child, she had been seriously sexually abused by F. The local authority held records of X's allegation and regarded them as potentially credible.
• M applied to vary contact arrangements in May 2010 and sought disclosure of the local authority material. The local authority resisted disclosure to protect X and claimed public interest immunity.

Procedural history:

• County court ordered disclosure; local authority resisted. The case was transferred to the High Court. Peter Jackson J heard the matter and, on 16 February 2012, dismissed applications for disclosure ([2012] EWHC 180 (Fam)), accepting medical evidence that disclosure and compelling X to give evidence would be oppressive and could harm her health.
• The Children’s Guardian appealed. The Court of Appeal allowed the appeal ([2012] EWCA Civ 1084; full judgment [2012] EWCA Civ 1204), holding that disclosure had freestanding value and the judge had been wrong to link disclosure to the question whether X could be compelled to give oral evidence.
• X obtained permission to appeal to the Supreme Court. The Supreme Court heard argument and did not itself see the protected material.

Nature of the application and issues:

• Primary relief sought by X: to resist disclosure of the local authority records identifying her and describing her allegations.
• Legal issues framed: whether disclosure would violate X's article 3 right (inhuman or degrading treatment); whether interference with X's article 8 right could be justified to protect the article 6 and article 8 rights of A, M and F; the scope of public interest immunity and common-law disclosure principles in children proceedings; and whether some form of closed material procedure or special advocate could protect X while allowing the allegations to be tested.

Court’s reasoning and conclusions:

• The Court reviewed common-law public interest immunity principles (D v NSPCC, Conway v Rimmer, In re D, In re B) and recognised the strong presumption in favour of disclosure in proceedings concerning children, while accepting that confidentiality for informants is an important public interest.
• On article 3, the Court concluded that disclosure of the material to the parties would not reach the severity threshold to constitute inhuman or degrading treatment, having regard to the context, therapeutic necessity and the medical care available to X.
• On article 8 and article 6, the Court held that nondisclosure would seriously compromise the fair trial and family life rights of the child and parents and would prevent proper investigation of the risk to the child; accordingly, interference with X's article 8 rights was proportionate and justified.
• The Court rejected the adoption of a closed material procedure in the ordinary family proceedings of this type, noting Al Rawi and the control-order jurisprudence: any closed procedure here would not meet the minimum requirements of a fair hearing because the essence of the allegations (where, when and how) would need to be known to permit effective challenge, and that would reveal X's identity.
• The Court dismissed X's appeal against disclosure but emphasised that disclosure does not automatically mean that X must give live oral evidence; the court may use alternative protective measures for vulnerable witnesses (video-recorded evidence, questions put through intermediaries, etc.).

Wider context noted: the Court expressed concern at the delay in resolving the disclosure issue and observed that family justice cases raising such difficult issues require prompt resolution in the interests of all parties, particularly the child.

Appeal dismissed. The Supreme Court concluded that (i) disclosure of the local authority records would not breach X's article 3 rights; (ii) any interference with X's article 8 rights was justified because non-disclosure would gravely compromise the fair trial and family life rights of A and her parents and prevent proper investigation of the risk to A; and (iii) a closed material procedure was neither available nor suitable in this case. The Court therefore upheld the Court of Appeal order for disclosure while noting that alternative measures are available to take the evidence of a vulnerable witness without face-to-face confrontation.

County Court orders and procedural steps from 2010 (initially a disclosure order in July 2010); transferred to the High Court where Peter Jackson J dismissed requests for disclosure: [2012] EWHC 180 (Fam). The Children’s Guardian appealed and the Court of Appeal allowed the appeal: [2012] EWCA Civ 1084 (short oral reasons) and full judgment [2012] EWCA Civ 1204. X obtained permission to appeal to the Supreme Court; this judgment dismisses that appeal: [2012] UKSC 60.