Family Law Hub

A (A Child) [2012] UKSC 60

  • In a tweet: LA's PII and third party's ECHR rights were outweighed by the need for parents and child to have a fair trial 

    Summary: The final instalment of a case that we have covered twice (High Court and Court of Appeal decisions) very recently.  

    The issue before the Supreme Court was whether a local authority should be ordered to disclose social work records to the parties in private law children proceedings concerning a child ("A") which would reveal the identity of a young woman ("X") who had made allegations against A's father ("F") that he had sexually abused her when she was a child.

    To recap, A's parents had separated when she was a baby. It was agreed that A would live with her mother ("M") and have unsupervised contact with F. When the local authority became aware of X's allegations, which had been reported to the local authority by others, it approached M and advised her that she should take steps to protect A from the risk of sexual abuse by F. It did not tell M who had made the allegations nor the details of what had been alleged but did say that they regarded the allegations as credible. M applied to vary the contact arrangements so as to restrict F's contact with A to supervised contact. F denied that he had sexually abused anyone.  

    At first instance, the court directed that the local authority should disclose the information in its possession in relation to X's allegations to M and F. The local authority had then applied to the court for the order to be discharged on the grounds of the severe distress and emotional harm which removing X's anonymity would cause to her. Medical evidence indicated that X's physical health had deteriorated to the point of being life threatening as a result of stress; further, disclosure of the records would potentially be detrimental to X's health and that being required to participate in the contact proceedings would be immensely stressful for her, even taking into account the measures available to protect X as a vulnerable witness.

    In the High Court, Peter Jackson J held that X's records should not be disclosed; he said that disclosure was unlikely to achieve anything valuable and it would be oppressive and wrong to compel X to give evidence at a subsequent hearing.  A's guardian appealed and the Court of Appeal reversed the High Court decision. Disclosure was ordered on the grounds that the question of whether X should actually give evidence would arise later in the proceedings. The local authority appealed and raised a public interest immunity argument as part of its challenge..  

    The twist of course was that by the time of the Court of Appeal hearing everyone, except F, knew X's identity.  

    The positions of the parties at the Supreme Court hearing were as follows.  

    • X resisted disclosure on the primary ground that this would violate her right not to be subjected to inhuman or degrading treatment, contrary to Article 3 European Convention on Human Rights ("ECHR"). Alternatively, she argued, the balance between her right to respect for her private life and the rights of the other parties should be struck by the court adopting some form of closed material procedure which would enable the allegations to be tested by a special advocate appointed to protect the parents' interests but without disclosure to F.  
    • A's guardian supported disclosure, arguing that A's right to respect for her private and family life was engaged, as potentially was her Article 3 ECHR right to protection from abuse. The allegations, it was submitted, could not be ignored but neither could they be taken into account unless they could be properly investigated.
    • M's position was the same as A's guardian with the additional feature that she knew who X was and she believed the principal thrust of the allegations were true. She understood that it would not be possible to rely upon the allegations unless they could be properly investigated; but she would also have great difficulty in agreeing that F should resume unsupervised contact with A unless they were.
    • F also supported disclosure. Not having seen the history of how and when X's allegations were made, he did not accept the judge's conclusion that they were not prompted by M.  
    • By now, the local authority had adopted a completely neutral stance as to disclosure. They accepted that if the material was not disclosed, it would not be possible for the local authority to bring care proceedings to remove A from M unless the material could be disclosed in those proceedings. In other words, they accepted that they could not have it both ways – they could not put all the burden of protecting A upon M without giving her the material with which to take action to protect A.

    Held: The Supreme Court unanimously dismissed the appeal; Lady Hale gave the only judgment.  

    She considered that the court was being required to "reconcile the irreconcilable". On the one hand was X's position. She had submitted that the impact of disclosure of her identity and the substance of her allegations would be so severe as to violate her right not to be subjected to inhuman or degrading treatment (Article 3 ECHR) or at the very least interfere with her right to a private life under Article 8 ECHR.  On the other hand was A, M and F's position. A had a right to be protected from abuse (potentially engaging Article 3 ECHR) but restricting contact with F interfered with her (and F and M's) right to a family life under Article 8 ECHR.  Further A, F and M were all entitled to a fair trial of the contact issues, as protected by Article 6 ECHR.  

    Lady Hale observed that the local authority's records enjoyed public interest immunity from disclosure because of the public interest in encouraging members of the public to come forward and to report suspected abuse in order to protect children. However, the local authority's immunity was not absolute and it had to be balanced against the public interest in a fair trial taking place (Article 6 ECHR being an absolute right). In children cases, Lady Hale stated, the court could exceptionally take into account material which had not been disclosed to the parties if disclosure would harm the child; in this case, there was little or no risk to A if disclosure took place. However, since the introduction of the Human Rights Act 1998, she explained, the court now had to take into account the interests of third parties whose ECHR rights might be violated by disclosure.  

    This was not a case where X's confidence could be preserved without harming others; her allegations had to be properly investigated and tested in order to either protect A from any risk of harm which F might present to her or, alternatively, so that she could resume her normal relationship with him.  

    Whilst X's Article 3 ECHR rights had to be taken into account, the context, Lady Hale considered, was important. Here, the state (which was potentially subjecting X to inhuman treatment) was acting in support of important public interests; moreover, Lady Hale highlighted, X was under specialist medical care. These professionals could do their utmost to ensure that any further suffering disclosure would cause to X could be minimised. Lady Hale therefore concluded that disclosure alone would not violate X's rights under Article 3 ECHR.  

    Moving on to X's right to respect for her private life, Lady Hale commented that the courts had no power in ordinary civil proceedings to adopt any form of closed material procedure which would restrict disclosure of material to a judge and a special advocate for the parties; indeed, and even taking into account the greater latitude in children proceedings, the arguments against making such an inroad into the normal principles of a fair trial remained powerful. In this case, F could not effectively challenge the allegations without a minimum amount of information which would inevitably disclose X's identity.  

    In summing up, Lady Hale found that the only possible conclusion was that the rights to a fair trial and family life for A, M and F were a sufficient justification for the interference with X's rights. Of course, by disclosing X's identity, it did not follow that  X would have to give evidence in person. Disclosure might be enough to resolve matters. Suggesting that if a hearing were needed, measures could be taken to protect X from courtroom confrontation, Lady Hale reminded practitioners that "the only concern of the court in family proceedings [is] to get at the truth".  

    Comment

    Lady Hale added this postscript to her judgement:

    "I cannot leave this troubling case without voicing my disquiet at the length of time it took for the first instance decision on disclosure to be made. The mother's application to vary the contact order was made in May 2010. The District Judge made a disclosure order in July 2010 and the local authority challenged that order that same month. The father's contact was reduced in September, as a temporary measure.  But it was not until May 2011 that the case was transferred to the High Court and not until September 2011 that it came before Peter Jackson J for a public interest immunity hearing at which X was represented.  Obtaining the medical report took another three months. Nor has the appellate process been as speedy as it might have been. But in retrospect it should have been obvious at the outset that the stance taken by the local authority raised difficult questions of law and fact which required speedy resolution, principally in the interests of A but also in the interests of her parents and of X.  The contact arrangements ordered in February 2009 have been interrupted and it is still not possible to say when the matter will be resolved. The parties deserve better of the family justice system than this." 

    The issues in this case went to the crux of how a court is to tackle serious allegations made by a person who wishes to remain anonymous and who does not want to come before the court to have their allegations tested.  

    So, here we have it. X's (strong) privacy rights are trumped by M, F and A's combined rights to a family life and a fair trial. Privacy effectively cuts both ways.  

    Interestingly, X's argument that there should be a form of "closed material procedure" was effectively what happened in the High Court. Jackson J had seen the relevant information and had determined that it was not something on which a fact finding hearing was required; he "put it out of his mind". In turn, a major issue in the Court of Appeal was whether a judge who had put the information "out of his mind" could genuinely do so and could therefore continue to hear the case.  

    Obviously, each case will turn on its facts. However, it is not difficult to see that local authorities may be more reluctant to take names of informants who want to ultimately retain their anonymity. After all, if their name isn't taken, there's no issue – is there? Neither is it difficult to see that cases which involve an anonymous informant will have the prospect of satellite litigation to determine whether the informant's identity should be disclosed. It is, in my opinion anyway, unlikely that local authorities will simply disclose informants' identities just because of this case; each case will require a consideration as to the balance of the parties' ECHR rights and the local authorities' public interest immunity.

Case note, published: 08/01/2013

Topics

See also

  • Appeal against decision to disclose third party allegations of sexual abuse in contact proceedings. Appeal dismissed. Judgment, 12/12/2012, free

Published: 08/01/2013

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