I (A Child), Re

A court should not determine a contested confidentiality or disclosure application in the total absence of notice to the affected respondents, even where revealing the information itself may be unjustified. Such hearings may be conducted ex parte only rarely. Where substantial argument has occurred and provisional views have been expressed without the respondents’ participation, the matter should ordinarily be reheard from the beginning by a different judge. Counsel may be given confidential material in advance where counsel provides an assurance not to disclose it to the client without further permission of the court.

Care proceedings concerned a 15-year-old child subject to an interim care order. The child had given confidential information to a social worker and guardian and strongly opposed its disclosure to his parents and stepmother. The guardian applied without notice for an order preventing the local authority from disclosing it. A circuit judge made an interim non-disclosure order and listed the application before Mr Justice Holman.

At the hearing, only the guardian and local authority were represented. The court considered whether it could determine the substantive disclosure dispute without the respondents or their legal advisers knowing that the application existed. A further issue arose concerning possible inadvertent disclosure of the information between barristers.

1. Application adjourned. The court declined to determine the substantive disclosure application and adjourned it to be heard afresh on notice to the three respondents and their legal advisers.
2. Following Re: M (Disclosure) [1998] 2 FLR 1028, the court held that a formal contested application should not ordinarily be determined without notice. The confidentiality of the underlying information did not justify concealing the existence of the proceedings and the procedural steps taken. Although an ex parte hearing was not excluded, it was expected to arise only rarely.
3. The court distinguished between the information itself, which might in an appropriate case be withheld, and the fairness and candour required concerning the procedure adopted. Since the guardian and local authority disagreed and the guardian had made a formal application requiring adjudication, the court could not properly rule without notice.
4. The rehearing was directed to take place before a different judge. Mr Justice Holman had heard substantial argument and expressed provisional views. A genuinely fresh hearing required a judge unaffected by those views and considering only material capable of being heard and read by all parties, apart from the confidential information itself.
5. Consistently with Official Solicitor to the Supreme Court v K and another [1965] AC 201, as referred to in Re: M (Disclosure), counsel could receive the confidential bundle in advance only if willing and able to give a written assurance not to disclose the information to the client without further permission of the court. Otherwise, counsel could not be told the information at that stage.