AB v CD & Anor

Applications to withhold asylum documents in family proceedings are governed by relevance, proportionality and strict necessity. Relevant material should ordinarily be disclosed where it is needed for a fair fact-finding or welfare determination, even though the asylum process attracts significant confidentiality protection. The court must balance the parties’ Convention and common-law rights, together with any third-party risks. Disclosure may be limited by redaction, confidentiality undertakings or other safeguards, but restrictions must go no further than the situation imperatively demands. A child involved in the asylum claim should ordinarily have access to the material and an opportunity to make representations before disclosure to another party is determined.

The father sought the return of his 11-year-old son to country X under the inherent jurisdiction. In the context of disputed allegations of domestic abuse, sexual assault, abduction and fabrication, he sought disclosure and inspection of the mother’s and child’s successful asylum files. The mother and the child opposed disclosure, relying on confidentiality, safety risks and the public interest in preserving the integrity of the asylum system. The court had already received the file and the child had inspected it. The central issue was whether relevant asylum material should be disclosed to the father, and, if so, what redactions or safeguards were required.

1. Application granted in part. Relevant documents from the asylum file were ordered to be disclosed to the father, subject to extensive redactions. Duplicate and purely administrative material was withheld.
2. Part 21 of the Family Procedure Rules 2010 and rule 21.3 governed the application. The court applied the approach in Dunn v Durham County Council, endorsed in Re H (A Child) (Disclosure of Asylum Documents) and G v G: relevance is assessed generously, and any restriction on disclosure must be strictly necessary.
3. The documents were relevant to the disputed allegations, the mother’s credibility, the circumstances of the journey to England, the alleged risks in country X and the future welfare determination. The application was not a fishing exercise.
4. The court balanced the father’s and child’s rights under Articles 6 and 8, the child’s best interests, the mother’s and maternal relatives’ Articles 2 and 3 interests, and the public interest in asylum confidentiality. The feared risks were not sufficiently evidenced in the circumstances, particularly as identifying information could be redacted. The public interest in confidentiality was significant but was outweighed by the requirements of fairness and natural justice.
5. The court rejected an adjournment for further submissions from the Secretary of State. The Secretary of State had already been given an opportunity to address the particular circumstances, and further delay would be disproportionate and inimical to the child’s welfare.
6. The judge noted the acute procedural difficulties that could arise if relevant material were withheld because disclosure might harm the child, including uncertainty about a closed material procedure and the ability of a parent to challenge the case against them. The procedure suggested in G v G, allowing a child involved in the asylum claim to see the material and make representations before disclosure was determined, was regarded as advantageous to the child.