O v P & Anor (No.2)

Disclosure in family proceedings requires a staged assessment. The material must first be relevant. The court must then balance the fair-trial rights of the party seeking disclosure against the privacy, confidentiality and welfare interests of others, applying strict necessity and proportionality.

Where a competent child’s highly private medical information is concerned, the court should assess the likelihood and seriousness of harm, possible protective measures, the welfare advantages and disadvantages of disclosure, and whether any restriction can be limited in scope or duration. Full disclosure may nevertheless be ordered where redaction would prevent a parent from engaging effectively with the issues.

The proceedings concerned Q, an almost 17-year-old young person receiving gender-related treatment. Following earlier proceedings and an appeal, the mother sought disclosure of an assessment report from Gender Plus, medical records, pharmacy information, and permission to disclose selected information in separate judicial review proceedings.

Q opposed disclosure, relying on his capacity, privacy and welfare interests. The court determined disclosure of the Gender Plus report and the extent to which information could be used in the judicial review proceedings. Decisions concerning further medical records and pharmacy details were deferred.

1. Disclosure of the report. The report was relevant in its entirety to the mother’s application concerning Q’s treatment. Q’s medical information engaged his Article 8 rights, and his capacity meant that the mother had no corresponding right to receive confidential information merely by virtue of being his parent. The mother nevertheless had Article 6 rights to a fair trial.
2. The court applied the relevance, balancing and strict-necessity approach in Durham County Council v Dunn, the proportionality test in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills, and the child-focused framework in T (Children: Non-Disclosure). The court considered the possibility of significant harm, measures to reduce its impact, the welfare consequences of disclosure and non-disclosure, and whether redaction could adequately protect Q.
3. The evidence did not establish a real possibility of significant harm from disclosure. Although Q would experience distress, disclosure could assist his welfare by enabling his mother to understand the assessment, the work undertaken and his thinking. Limited extracts would be inadequate and might increase the mother’s anxiety. Subject to removing names and immaterial material, the whole report therefore had to be disclosed as necessary and proportionate.
4. Use in judicial review proceedings. The mother’s Article 10 rights and interest in participating in other proceedings had to be balanced against confidentiality. She could state that Q had received hormone treatment for at least 18 months and that the father attributed his decision to concern for Q’s mental health. The father’s explanatory statement, which concerned an unadjudicated potential breach of orders, could not be disclosed or directly quoted outside the proceedings. The application was allowed only to that limited extent.
5. Further decisions concerning the Gender Plus and Gender GP medical records and pharmacy details were reserved.

1. High Court (Family Division): earlier proceedings were brought to an end in O v P & Q [2024] EWHC 1077 (Fam).
2. Court of Appeal: the decision was overturned and the proceedings were restored on specified conditions in O v P & Q [2024] EWCA Civ 1577.
3. High Court (Family Division): the present disclosure applications were determined in part; further disclosure issues were deferred.