Lancashire County Council v E & F

Religious confidentiality is not absolute where disclosure is necessary to protect children from sexual abuse. Material gathered by religious elders while investigating allegations, rather than receiving a confession or providing spiritual counselling, does not acquire special protection merely because it concerns religious communications. Even where Article 9 of the Convention is engaged, disclosure may be ordered where it is prescribed by law and proportionate to protecting children and the rights of others. The need to assess past abuse, parental failure to protect, and future risk may outweigh the interference with ministers’ religious freedom.

The local authority commenced care proceedings concerning two children after allegations that the father had sexually abused the daughter. The allegations had been reported to elders of the Jehovah’s Witness congregation in 2016, but the police were not informed until 2019. The elders had investigated the allegations and held relevant documents, but declined to provide statements or records.

The application was made by the elders to set aside a witness summons requiring statements and documents concerning the allegations. The central issue was whether disclosure could be resisted on grounds of religious confidentiality, spiritual counselling, confession, or Article 9 of the European Convention on Human Rights.

1. The witness summons was upheld and disclosure ordered. A and B were required to provide full statements and the documents sought.
2. There was no evidence that the material was a confession or akin to a confession. The allegations came to the elders through the mother, after which the elders investigated and met the father. Any assumed confidentiality attaching to a confession therefore did not arise on the evidence.
3. The material was not shown to be the product of spiritual counselling. The elders were investigating allegations of child sexual abuse. Describing that investigation as spiritual counselling improperly focused on the father’s interests rather than the child’s protection.
4. The congregation’s safeguarding policies themselves indicated that information suggesting a child might remain at risk should be conveyed as necessary for safeguarding. The asserted requirement that disclosure depended on the individual’s consent was not supported by either policy.
5. The information was potentially highly relevant to findings concerning the father’s alleged abuse, the mother’s failure to protect the children, and future risks to the children and others. The case concerned future child protection as well as past criminality, and therefore fell on the child-protection side of the distinction discussed in R v H [2019] 1 WLR 3744.
6. Religious confidentiality, whether considered under the common law or Article 9, was not absolute. Article 9(2) permits proportionate interference for public safety, health, morals, and the protection of the rights and freedoms of others. Protecting a child from sexual abuse was a highly weighty, potentially overriding consideration.
7. The interference with A and B’s religious rights was relatively slight, particularly because the material did not appear to concern confession or genuine spiritual counselling. Disclosure was consequently proportionate.

First-instance decision. No prior appellate decision is stated in the judgment.