T (Children: Non-Disclosure), Re

The Court of Appeal allowed an appeal against an order permitting continued non-disclosure of confidential material to a father in private law family proceedings. The court reiterated and applied the established Re D framework for withholding material in children cases: (1) relevance; (2) real possibility of significant harm and its nature and probability; (3) whether the risk can be reduced by measures; (4) overall welfare advantages and disadvantages of disclosure; and (5) whether the child’s interests so outweigh the rights of the party that non-disclosure is strictly necessary. The appeal court found that the judge below had not carried out a sufficiently thorough application of those questions: he did not identify with sufficient particularity the nature and probability of the feared harm, did not consider potential measures to mitigate the risk, did not evaluate the overall welfare advantages and disadvantages to the child of disclosure or continued secrecy, and gave insufficient weight to the father’s Article 6 and Article 8 rights. The court also identified procedural unfairness in that the judge reached his closed decision before hearing the father to the greatest practicable extent. The Court of Appeal ordered disclosure of the closed material to the father subject to specified safeguards and remitted the proceedings for urgent case management to arrange a psychological assessment and related directions.

Background and parties. The proceedings concerned two children following parental separation. HHJ Roberts had earlier made a live-with order for the mother and limited the father’s time. After later events the mother relied on a confidential mental-health report relating to the younger child, Tom, and applied to withhold that report from the father on the basis that disclosure risked harm. The father applied for disclosure; a Children’s Guardian supported disclosure and the mother was neutral.

Procedural history. The matter came before Mr Justice Francis on 31 January 2024. He made a closed judgment permitting continued non-disclosure and allowed renewal of the father’s application only after a psychological assessment. The father sought permission to appeal; permission was granted to the Court of Appeal.

Nature of the application and relief sought. The immediate issue was whether relevant confidential material (a mental-health nurse’s report and the mother’s confidential statement) could be withheld from the father, or whether it should be disclosed so that he could know the case against him, participate in a family assessment and be fairly heard.

Issues framed by the court. The Court of Appeal restated the questions a judge should ask when withholding material in children cases derived from Re D and subsequent authorities: relevance; the nature and probability of harm from disclosure; possible measures to reduce risk; overall welfare advantages and disadvantages of disclosure; whether the child’s interests so outweigh the rights of the party that non-disclosure is strictly necessary; and whether any non-disclosure can be limited in scope or duration. The court also considered Article 6 and Article 8 rights and procedural fairness in hearings where part of the hearing is in private.

Court’s reasoning and subsidiary findings. The court found that by the time of the hearing Tom’s condition had improved and the Guardian recommended disclosure. The judge below had expressed legitimate concern about the father’s past controlling behaviour but had not: (a) assessed the probability and precise nature of harm that might result from disclosure; (b) considered whether and how risks could be mitigated by orders or safeguards; (c) balanced the disadvantages of continued secrecy to the child and to the efficacy of the forthcoming psychological assessment; or (d) given weight to the father’s Article 6 rights to know the case against him and to participate effectively in assessment. The judge had also reached his closed decision before hearing the father to the greatest practicable extent, a procedural defect. Taking account of the centrality of the material to the issues and the practical need for the parents to be on an equal footing for the psychological assessment, the Court of Appeal concluded that disclosure subject to safeguards was appropriate.

Remedy and directions. The appeal was allowed. The Court of Appeal ordered disclosure of the bundle of closed documents and the Guardian’s Note of Enquiries to the father on specified conditions (timing, continued interim non-contact, limits on discussion, restrictions on informing the children until expert advice or court permission, attachment of a warning notice, and notification to the NHS Trust and local authority). The matter was remitted for urgent case management to settle the psychologist’s appointment and other directions.

Appeal allowed. The judge below had not applied the Re D framework with sufficient particularity: he failed to identify with adequacy the nature and probability of harm from disclosure, did not consider measures to mitigate risk, did not evaluate the overall welfare advantages and disadvantages of disclosure or continued secrecy, and gave insufficient weight to the father’s Article 6 and Article 8 rights. Procedural unfairness was also found because the judge reached his closed decision before hearing the father to the greatest practicable extent. Disclosure of the confidential material was ordered subject to safeguards and the case was remitted for urgent case management and a psychological assessment.

Appeal from the High Court of Justice, Family Division (Francis J) (order made 31 January 2024 arising from earlier decisions of HHJ Lynn Roberts (June–December 2023)). Permission to appeal was granted and the Court of Appeal allowed the appeal in part, setting aside paragraphs 4 and 5 of the judge’s order and remitting the proceedings for case management.