London Borough of Barking & Dagenham v RM & Ors

Where a court proposes to withhold relevant information from a party, the default position is that the party should receive notice and have an opportunity to make representations. That protection reflects the right to a fair trial under Article 6 and should not be displaced without very strong and clear reasons.

In deciding whether notice may be withheld, the court must conduct a proportionate assessment. The privacy and sensitivity of the information, its importance to the substantive proceedings, and the practical consequences of notifying the party are material. Notice may be limited in content: the party may be told only the hearing date, while legal representatives are told the nature of the application and may prepare without being informed of the underlying information.

The local authority sought directions during care proceedings concerning two children. The mother was HIV positive and had never disclosed that fact to the father. The local authority argued that the father should be notified, in general terms, that the court was considering withholding relevant information from him. The mother and children’s guardian opposed any notice at that stage.

An earlier determination by Keehan J had been overturned by the Court of Appeal, and the issue was reconsidered by the President of the Family Division. The central question was whether the father should receive basic notice of the forthcoming hearing while the substance of the information remained withheld.

1. Default position. The Court of Appeal’s decision in Re M (Disclosure) established the applicable approach. Notice should ordinarily be given to the party from whom material is to be withheld, and that party should have an opportunity to make representations. The court was bound to follow that authority.
2. Fair trial and proportionality. The father’s Article 6 right to a fair hearing required basic notice unless very strong and clear reasons justified proceeding without it. The fact that the local authority and guardian would advance arguments favourable to disclosure did not provide the same protection as representation by the father’s own legal team.
3. Distinguishing earlier HIV-status cases. Re P and London Borough of Brent v N & P concerned cases in which the HIV status was of marginal importance. There, proportionality favoured preserving the essentially private nature of the information. Here, the guardian’s case placed the mother’s HIV status at the centre of the care proceedings, materially altering the balance.
4. Limited notice. The proportionate course was to notify the father of the date of the next hearing, without informing him that the application concerned disclosure or revealing its substance. His solicitors and counsel were to be told the nature of the application and given the legal submissions, but not the underlying information. The hearing was to begin with directions concerning what information, if any, could be disclosed to them.

The matter was initially determined by Keehan J. The Court of Appeal overturned that decision. The issue was then reconsidered by the High Court (Family Division), which directed that the father receive limited notice of the next hearing.