Balancing children’s welfare against the right to a fair trial - Re: T (Children: Non-Disclosure)

Posted: 27/03/2024

Tammy Knox, Patrick Dunsmore and Laura Hunter-Watkins, of the family law team, have successfully represented the appellant father on a pro bono basis in the Court of Appeal case of Re: T (Children: Non-Disclosure).

The appeal concerned the important issues of disclosure versus non-disclosure to a parent of statements or allegations made by a child, and the correct procedure for partially closed hearings (where one party and their representatives are excluded for a period).

The judgment, handed down on 18 March 2024, serves as a helpful reminder to practitioners of the relevant case law and balancing test to be applied when considering non-disclosure in children proceedings.

Background

The mother and father were engaged in litigation over child arrangements that concluded in the summer of 2023. In the autumn, the mother made an urgent application to suspend all contact between the father and the children in November 2023, on the basis of a report made by the youngest child, and sought an order that the substance of her application and the comments made by the child remain confidential ie that they should not be disclosed to the father.

The family court considered and granted the mother’s application in the interim, ordered the appointment of a guardian to represent the children, and referred to the High Court the question of whether the confidential material should be disclosed to the father.  

A hearing about the disclosure of the confidential material took place on 31 January 2024 in the High Court. The guardian conducted initial investigations and took the position that she supported disclosure of the confidential material to the father. The father also supported disclosure of the confidential material, and the mother was neutral on the issue (ie, she did not oppose it).  

Despite the guardian’s and father’s support of disclosure, and the mother’s neutrality, the court ordered that the confidential material should continue to be withheld from the father. It also ordered that the family should undergo a psychological assessment, and that the father could renew his application for disclosure only after this was complete.

The father successfully appealed the High Court’s decision to the Court of Appeal, which Lord Justices Peter Jackson and Baker heard on 8 March 2024, and the non-disclosure order was set aside. The court ordered that the confidential material be disclosed to the father, and that appropriate measures be put in place to protect the child’s emotional and physical wellbeing. 

The legal test

Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, [1995] 2 FLR 687 tells us that the court must consider the balance of harm to a child caused by disclosure or non-disclosure to a parent, of a statement the child has made.

If the court is leaning towards non-disclosure, it must then weigh the decision against the interests of the parent in being able to see and respond to the material. Non-disclosure must only be ordered where there is a compelling reason. 

This balancing test was taken a step further in Re B (Disclosure to the Other Parties) [2001] 2 FLR 687 (decided since the advent of the Human Rights Act 1998). It provided that there must be a balance between the parties’ Article 6 right to a fair trial (ie to see the evidence against them), and the child’s Article 8 right to privacy. The court must first consider if the disclosure is relevant before conducting a balancing exercise of the competing rights.

In paragraph 22 of the judgment in Re: T (Children: Non-Disclosure), the Court of Appeal sets out the questions that a court should ask itself, if it is requested to authorise non-disclosure in the interests of a child:

• Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them?
• Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability?
• Can the feared harm be addressed by measures to reduce its probability or likely impact?
• Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure?
• Where the child’s interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that person in the particular circumstances?
• Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is no more than would be proportionate to the feared harm?

Each case will, of course, turn on its specific facts. In this case, the Court of Appeal decided that, while there were significant concerns as to the child’s welfare by ordering disclosure to the father, there were suitable measures to mitigate them, so it ordered disclosure in an appropriately managed way. 

Furthermore, the guardian supported disclosure to the father on the basis that the children’s overall welfare may be stifled if he could not properly engage in the proceedings and the whole family psychological assessment, which held weight. 

Non-disclosure of evidence to a litigant should be the exception and not the rule; however, the welfare of a child must remain paramount, and there may be circumstances where the balancing test falls in favour of withholding disclosure.

Partially closed hearings

Additionally, the Court of Appeal endorsed the procedure in London Borough of Barking and Dagenham v RM & LS [2023] EWHC 777 (Fam) for partially closed hearings, where one party is excluded for a period while the court considers whether to withhold the disclosure of material to that party. 

It confirmed that the court must not reach a decision to withhold disclosure without hearing from the excluded party first. In this case, the Court of Appeal found that the judge had been incorrect to decide to withhold disclosure before hearing from the father. 

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