London Borough of Barking & Dagenham v RM & Ors

Highly personal medical information attracts substantial weight under Art.8, but privacy is not absolute. Where the information is relevant to care proceedings, the court must balance the individual’s privacy against the rights of the children and other parties, including the requirements of a fair and workable hearing. Non-disclosure is justified only where the case is compelling or strictly necessary. Relevance may arise from the information’s significance to future care planning, the welfare assessment, parental honesty, and the ability of the court and professionals to evaluate the evidence fairly. If relevance is established and the issues cannot fairly be litigated without disclosure, disclosure may be necessary and proportionate, particularly where it can occur in a professionally supported manner.

The local authority applied during ongoing care proceedings for disclosure to the father of the mother’s HIV-positive status. The mother relied on her privacy rights and feared serious personal and family consequences, including damage to the existing co-parenting arrangements. The local authority and children’s guardian argued that the information was relevant to the children’s health planning, the assessment of the mother’s honesty and functioning, and the fairness of the proceedings.

A previous decision by Keehan J ordering disclosure had been challenged on appeal, but the appeal was compromised. The issue was reheard by the President of the Family Division.

1. Disclosure ordered. The mother’s HIV status was relevant to the care proceedings and its disclosure to the father was necessary and proportionate.
2. The starting point was that the information was highly personal and attracted substantial weight under Art.8. Privacy would have prevailed if the information had no relevance to the care proceedings.
3. The court applied the approach derived from Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 and Re B (Disclosure to Other Parties) [2001] 2 FLR. The court had to balance the mother’s privacy against the father’s and children’s rights, including the father’s entitlement to participate fairly in proceedings concerning his children. Non-disclosure required a compelling case or strict necessity.
4. Relevance was established because the information was material to monitoring the children’s possible future health needs, protecting the mother’s health, evaluating the care plan, and assessing the mother’s honesty and functioning. It also affected the completeness of professional assessments and the court’s ability to investigate matters fairly.
5. The cases in which HIV information had been withheld because it was irrelevant, London Borough of Brent v N & P [2005] EWHC 1676 (Fam) and Re P [2006] 2 FLR, were distinguishable. Here, relevance was established.
6. Disclosure should take place in a professionally supported setting, with medical explanation and advice concerning confidentiality. That approach reduced the risks of a harmful reaction and was preferable to later, uncontrolled disclosure.

• High Court (Family Division): A previous decision by Keehan J ordering disclosure had been challenged on appeal, but the appeal was compromised. The disclosure issue was reheard by Sir Andrew McFarlane P, who ordered disclosure.