In the matter of A (A Child)

Information supplied by an alleged victim of child abuse may attract public interest immunity, but the immunity is not absolute. The public interest in confidentiality must be balanced against the requirements of a fair trial.

Where serious allegations materially affect decisions about a child, the court cannot rely upon them without giving the parties an effective opportunity to challenge their essence. Disclosure may interfere with the informant’s private life, but may be proportionate where necessary to protect the child’s welfare and the parties’ fair-trial and family-life rights. The severity of any alleged violation of article 3 of the European Convention on Human Rights must be assessed in its full context.

A young woman, X, confidentially alleged that she had been seriously sexually abused as a child by F, the father of A. The local authority considered the allegations credible and advised A’s mother to prevent unsupervised contact. X resisted disclosure because medical evidence indicated that the resulting stress could cause a serious deterioration in her physical and mental health.

Peter Jackson J refused disclosure in [2012] EWHC 180 (Fam). The Court of Appeal allowed the Children’s Guardian’s appeal, first in [2012] EWCA Civ 1084 and subsequently by full reasons in [2012] EWCA Civ 1204. It held that disclosure had value independently of whether X could later give oral evidence.

The central issues were whether disclosure would violate X’s rights under articles 3 or 8 of the European Convention on Human Rights, and whether a closed material procedure could reconcile her interests with the welfare and fair-trial rights of A and her parents.

1. The appeal was dismissed unanimously. Lady Hale, with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Reed agreed, held that the Court of Appeal’s disclosure order should stand.

2. Information given to child-protection authorities by an informant, including an alleged victim, may attract public interest immunity because of the public interest in encouraging reports of abuse. The immunity is only a starting point. The interest in confidentiality must be balanced against the public interest in a fair trial. If disclosure is refused, the decision-maker cannot take the protected information into account.

3. The child-protection authorities regarded the allegations as credible and they raised a serious possibility that A was at risk. They could not be investigated or tested without disclosing X’s identity and the details and history of her allegations to A’s parents and Guardian. At common law, the balance therefore decisively favoured disclosure.

4. Disclosure would not violate article 3 of the European Convention on Human Rights. The article 3 threshold depends upon all the circumstances, including the treatment’s context, purpose, method and effects and the victim’s health. X faced a significant risk of illness through stress, but disclosure served important child-protection and fair-trial objectives and would occur while she received specialist medical care.

5. Disclosure would interfere with X’s article 8 right to respect for private life. Nevertheless, the fair-trial and family-life rights of A and her parents sufficiently justified that interference. X’s privacy rights could not justify the grave compromise of those competing rights which non-disclosure would entail.

6. A closed material procedure could not provide a fair solution. Although it was arguable that family proceedings might permit greater procedural latitude than ordinary civil proceedings, F could not effectively challenge the allegations without knowing where, when and how the alleged abuse occurred. A gist and special advocate could not cure that deficiency.

7. Disclosure did not mean that X must give oral evidence. The court should proceed incrementally and reassess the competing rights as the case develops. It could obtain updated medical evidence and use hearsay, recorded interviews, written questions, video arrangements or questioning without face-to-face confrontation. The procedure should enable reliable evidence while avoiding further harm.

1. United Kingdom Supreme Court: Dismissed X’s appeal and upheld the Court of Appeal’s disclosure order: [2012] UKSC 60.

2. Court of Appeal: Allowed the Children’s Guardian’s appeal, initially giving short oral reasons in [2012] EWCA Civ 1084 and subsequently full reasons in [2012] EWCA Civ 1204. It held that disclosure had freestanding value and that the first-instance judge had prematurely linked disclosure to X’s ability to give oral evidence.

3. High Court: Peter Jackson J refused disclosure of the local authority’s records because of the serious risk to X’s health and his conclusion that compelling her to give evidence would be oppressive and wrong: [2012] EWHC 180 (Fam).