Sex abuse allegations against parent should be disclosed in contact proceedings

28 September 2012 by Matthew Flinn

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

In March 2010, this arrangement was disrupted, when her mother was informed by the local authority that another young person (X) had made serious and credible allegations against the father to the effect that he had sexually abused her (X) when she was a child. It would not disclose any more of the substance of the allegations or the identity of the young person who had made them, but warned the mother not to allow unsupervised contact.

The mother consequently applied to the court to have the final contact order varied, such that the father had contact only for shorter supervised periods. This application was made in May 2010. In mid-2012 it was still awaiting determination.

The reason for the delay was because there was a dispute as to whether the local authority should be required to disclose to all the parties to the contact proceedings (the mother, the father and the child’s guardian) the substance of the allegations and the identity of the person who had made them (in fact, the identity of X had been accidentally disclosed by the local authority to the mother and the guardian, but not to the father, and no one had been informed of the substance of the allegations).

High Court

In the High Court, Peter Jackson J attempted to look at the matter from a practical perspective. He was of the view that disclosing X’s identity and the substance of her allegations would not be helpful to the court unless X could give oral evidence. Without such oral evidence, the allegations could not be proved and would not provide a solid basis for future contact arrangements for the child. However, X had not ever wanted her identity to be made public, and she was very resistant to the possibility of giving evidence about the allegations she had made. Indeed, there were medical reports before the court which indicated that disclosure of X’s records or being required to give evidence could have a severely detrimental effect on both her psychiatric and physical health.

Peter Jackson J decided that, in light of the medical evidence, he would not require X to give oral evidence in support of her allegations, and therefore it would not be right to reveal her identity to all of the parties or the substance of the allegations she made. He was comforted in reaching that decision by the fact that, in his opinion, not being able to prove the allegations would not necessarily mean the mother was unsuccessful in her application to vary the contact order.

Conflating issues

On appeal, it was argued that the Judge incorrectly made the issue of disclosure depend on the separate question of whether or not X could be required to give oral evidence, and that in any event it was wrong not to disclose the allegations to the child’s guardian, who could consequently not effectively represent the child’s interests.

MacFarlane LJ, in delivering the leading judgment for the Court, looked to case law relating to the disclosure of material in adoption and care proceedings, such as Re B (A Minor) (Disclosure of Evidence) [1993] 1 FLR 191, Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 and In Re B, R and C (Children) [2002] EWCA Civ 1825. Those cases emphasised the importance of disclosure as fundamental to the fairness of these proceedings, and indicated that non-disclosure should only be contemplated when the welfare of a person affected by the decision to disclose required it.

However, many of the relevant cases preceded the implementation of the Human Rights Act 1998, and were focused on relatively narrow question of the fairness of non-disclosure balanced against the risk of harm to another individual. Looking at the issue post-HRA required a broader inquiry, looking into the various human rights engaged for all parties involved in the proceedings. They can be summarised as follows:

1. There was of course the interest in ensuring that the child (A) who was the focus of the contact proceedings was protected from abuse and mistreatment. This was necessitated by her Article 8 rights (to respect for her family life) and Article 3 rights (which prohibits inhuman or degrading treatment).
2. The human rights of X also had to be taken into account. Article 3 necessitated that she too was protected from abuse, and arguably, also the torment of requiring her to give oral evidence and be questioned by her alleged abuser. Her Article 8 right to privacy was also clearly engaged.
3. The father was in the invidious position of facing a cut in his contact on the basis of unspecified allegations made by an unidentified person, which he denied and wanted the opportunity to challenge. His Article 6 right to a fair trial was obviously in play. He also had the right to respect for his family life under Article 8.
4. Similarly, the mother had an interest in there being a fair trial (Article 6) and respect for her family life (Article 8), as well as an obvious concern for the safety of her daughter.

In assessing the way these rights interacted with each other, McFarlane LJ accepted the general proposition that no particular right in the ECHR automatically took precedence over any other, but also acknowledged that this case involved Article 3, which is an unqualified right, and therefore had particular importance (as was made clear by the CA in A Local Authority v A [2009] EWCA Civ 1057). The same is true of Article 6.

He noted that the Article 6 and Article 8 rights of both parents, as well as rights of the child under Articles 6, 8, and 3, militated in favour of disclosure. It was the Article 8 and Article 3 interests of X which might be said to militate against it.

However, McFarlane J said that X’s Article 3 rights could only potentially be engaged in relation to the question of disclosure, if disclosure necessitated that X was indeed required to give oral evidence. The distress caused to X by her identity and the substance of her allegations being made known was not in itself sufficient to cross the Article 3 threshold. Therefore, the first question was whether or not the judge at first instance was right to proceed on the basis that the matter of disclosure and the oral evidence issue could not be addressed separately.

He decided that the judge was wrong on that point. He rejected the assumption that the allegations of X could not be tested, proved or disproved without X giving oral evidence, and considered that the emphasis on the importance of disclosure in and of itself in the case law indicated that the judge’s approach was contrary to authority. This meant that, in fact, the question of X’s Article 3 rights being engaged did not necessarily arise (meaning the Court avoided having to determine the much more vexed issue of whether or not requiring someone to give distressing evidence could amount to inhuman or degrading treatment under Article 3 – this would arguably be a significant but controversial expansion of the right, with serious ramifications for the family and criminal justice systems).

Balance in favour of disclosure

Nevertheless, McFarlane LJ acknowledged that X’s Article 8 rights were clearly engaged, and that even the impact of disclosure of her identity and the substance of her allegations, having regard to the medical evidence of her fragile condition, would be acute. However, he also noted that the allegations went to the core of the contact issue to be determined in the proceedings (highlighting the weight to be given to Article 6), and that the decision in relation to contact could in turn entirely determine the nature of the familial relationships involved in the case for the foreseeable future. The need to protect A from abuse also meant that Article 3 was still at issue to that extent.

At paragraphs 91 and 92 he said:

…the balance that has to be struck must accord due respect to X’s Art 8 rights on the one hand and the Art 6 and 8 rights of A and her parents, and the marginal impact of A’s Art 3 rights, on the other. In conducting the balance no one right attracts automatic precedence over another, however Art 8 rights are qualified whereas those under Art 6 are not qualified. The presence of A’s Art 3 rights is to be highlighted; they are of marginal impact on this issue, but their presence flags up the importance of the issue (serious sexual abuse) to which the disclosure relates. The evaluation of necessity and proportionality is to be conducted on the basis of the current situation, taking account of the fact that the state has already seen fit to breach X’s Art 8 rights by making the disclosure that has taken place to the mother and the state has effectively required the mother to commence these proceedings with a view to achieving orders that protect A from a risk that the local authority has described as credible. In terms of A’s interests and those of her parents, the undisclosed material is absolutely central to the issue of contact that has been brought before the court.

For the purposes of this evaluation it must be assumed that the local authority was justified in acting as it did in relation to A’s mother. Where the state has decided to breach X’s Art 8 rights to that degree, and where the fallout from that disclosure leaves the mother in the difficult position that she so clearly describes, only very exceptional circumstances are likely to justify the court, also acting as an arm of the state, in refusing full disclosure of the material to the mother and in turn to the father and A’s representatives.

He concluded:

For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

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