Local Authority X v HI & Ors

In care proceedings, a party’s Article 6 right to a fair trial does not create an absolute entitlement to every piece of information held by the local authority. Disclosure must be assessed by balancing fair-trial requirements against the child’s Article 8 rights and welfare.

The Re D test applies. Non-disclosure remains exceptional and requires a compelling case, a rigorous assessment of the risk and gravity of harm, and consideration of the information’s relevance to the issues. A Gillick-competent child’s strongly expressed wish for confidentiality is an important welfare consideration, but is not independently determinative. Where information has little or no forensic relevance and disclosure creates a real possibility of significant harm, non-disclosure may be ordered without denying the respondents a fair trial.

The Guardian applied for an order restraining disclosure to the child’s parents and step-mother of personal information shared by a nearly sixteen-year-old child with professionals involved in his care.

The information did not concern the parents, their parenting, or the local authority’s care plan. The respondents nevertheless wished to deploy it in the forthcoming final care proceedings. The local authority sought the court’s guidance because of its perceived disclosure obligations, while the Guardian relied on the child’s autonomy, confidentiality and welfare.

The central issue was whether the information should be disclosed notwithstanding the child’s Article 8 rights and expressed wish for privacy, having regard to the respondents’ Article 6 rights and the disclosure principles applicable in care proceedings.

1. Approach. The application was granted and the existing injunction restraining disclosure continued. The court declined to decide the truth of the information.
2. Interaction of autonomy and disclosure principles. The principles in Gillick v West Norfolk and Wisbeach Area Health Authority and Regina on the Application of Sue Axon v The Secretary of State for Health and the Family Planning Association were relevant to the welfare stage of the analysis. They did not apply in isolation because the present proceedings engaged the respondents’ Article 6 rights. The child’s wishes and maturity deserved considerable respect but were not determinative.
3. Balancing test. The principles in Re D (Minors)(Adoption Reports: Confidentiality), as applied in care proceedings, required consideration of relevance, the real possibility of significant harm, the child’s overall interests, and the respondents’ interests in seeing and answering the material. Non-disclosure was exceptional and required a compelling case.
4. Application. The information was irrelevant, or at its highest only tangentially relevant, to the issues concerning the quality of the parents’ care and the proposed care plan. It would not affect the local authority’s decision-making or the outcome of the care proceedings. Disclosure created a real possibility of significant and detrimental harm, including damage to the child’s trust in professionals and future therapeutic relationships.
5. The respondents’ Article 6 rights were absolute, but the content of a fair trial was flexible and context-sensitive. Withholding information of minimal forensic relevance was proportionate and would not deny a fair trial. The case for non-disclosure was compelling and exceptional. The information was to remain confidential, subject to any later order. Alternative counsel for the mother could receive it on the same confidentiality undertaking.