T (Children: Non-Disclosure), Re

Relevant evidence may be withheld from a party in family proceedings only where non-disclosure is strictly necessary and the case for it is compelling. The court must rigorously assess the nature and probability of significant harm, possible safeguards, the child’s overall welfare, the material’s importance and the consequences for the excluded party.

Neither a child nor a professional has a veto over disclosure. Any restriction must be proportionate in scope and duration. A party excluded from part of a hearing must, to the greatest practicable extent, be heard before the court reaches its decision.

Private law proceedings concerned two children whose father had ceased having contact after the younger child showed acute distress and disclosed information to a mental health nurse. The mother obtained orders permitting her to withhold a statement and associated material from the father.

Francis J continued non-disclosure despite the Children’s Guardian recommending full disclosure, the mother adopting a neutral position and a psychological assessment of the family being proposed. He considered that disclosure created a real risk of harm and a breach of the child’s trust.

The father appealed. The central issues were whether the judge had applied the correct test for non-disclosure, adequately considered safeguards and competing rights, and followed a fair procedure before reaching his decision.

1. Appeal allowed. The judge’s approach was insufficiently thorough. The provisions continuing non-disclosure were set aside, and disclosure was ordered subject to safeguards.

2. The principles stated in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 applied. Relevant material may be withheld only exceptionally. The court must examine rigorously whether disclosure creates a real possibility of significant harm, whether non-disclosure benefits the child overall, and whether those interests compellingly outweigh the affected party’s right to see and answer the material.

3. The court identified six questions concerning relevance, the nature and probability of harm, measures capable of reducing that harm, the child’s overall welfare, strict necessity and whether any restriction can be limited in scope or duration. Neither the child nor the mental health professional had a veto over disclosure.

4. The judge was entitled to recognise that insensitive intervention by the father might cause serious harm. He did not, however, identify the probability of that risk, address whether an order restraining discussion with the children would manage it, or evaluate the welfare disadvantages of continued secrecy. He also failed to engage adequately with the Guardian’s recommendations.

5. Rights under Articles 6 and 8 of the European Convention on Human Rights protect deserving and less deserving litigants equally. The earlier adverse findings about the father did not justify depriving him of important information during the child’s crisis. Continued non-disclosure would also compromise the proposed psychological assessment and prevent the parents participating on an equal footing.

6. A court excluding a party from part of a hearing should, to the greatest practicable extent, hear that party before reaching its ultimate decision. The procedure adopted unfairly left the father attempting to reverse a decision already made.

7. The risks arose principally from unrestricted contact rather than disclosure and could be managed by orders. Disclosure was therefore directed on conditions restricting dissemination and preventing the children being told without agreement following expert advice or the court’s permission. The proceedings were remitted for urgent case management and appointment of a psychologist.

• Court of Appeal (Civil Division): Granted permission, allowed the appeal, set aside the provisions continuing non-disclosure, ordered disclosure subject to safeguards and remitted the proceedings for urgent case management.
• High Court, Family Division: Francis J continued permission to withhold the confidential material from the father and permitted him to renew his application after a psychological assessment. Permission to appeal was refused.
• Family Court: Her Honour Judge Lynn Roberts initially suspended contact, permitted temporary non-disclosure, appointed a Children’s Guardian and transferred the disclosure issue for consideration at High Court level.