Residence and Contact Orders – Disclosure of Evidence
Re J (a child) (disclosure): Court of Appeal, Civil Division (Lord Justices Thorpe and McFarlane, Lady Justice Hallett): 21 September 2012
The instant proceedings concerned a child, who was aged 10 years old. The parents had separated in December 2002 and the father returned to his home country of Australia. In February 2009, a final contact order was made providing for the child to stay with the father for a total of six weeks per year. In March 2010, local authority social workers contacted the mother and informed her that a young person, X, had made serious allegations of sexual abuse against the father.
The authority regarded the allegations as ‘credible’ and advised the mother that she should not allow the child to have unsupervised contact with the father. In May 2010, the mother applied to vary the contact order so that future contact would be restricted to shorter, supervised periods. During the course of the proceedings, the parents and the children’s guardian made an application for disclosure of X’s file from the local authority. The father denied sexually abusing anyone and had not been informed of X’s identity nor of the substance of her allegations.
The mother had become aware of X’s identity. X suffered from poor physical and mental health and strongly resisted disclosure. The judge concluded that the balance fell against general disclosure of X’s personal and medical history and that, in the circumstances, it was not possible for information about X’s identity and allegations to be disclosed to the parties. The children’s guardian appealed.
He contended, inter alia, that: (i) the judge had erred in conflating the question of X giving evidence with the question of disclosure; (ii) the judge had erred in holding that disclosure of X’s medical records would serve ‘no good purpose’. Consideration was given to the European Convention on Human Rights.
The court ruled: (1) Disclosure to a party, and knowledge of relevant information by a party, were freestanding matters, albeit that they might in some cases form part of a continuum which might in due course include consideration of a witness being called to give oral evidence.
In the instant case, the judge had been in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge had allowed that conclusion to dominate his consideration of the disclosure question in a manner which was unsupported by authority. The course taken by the judge in linking consideration of whether or not X could ever give oral evidence with the issue of disclosure was not only unsupported by previous authority but also appeared to be contrary to the earlier case law.
The judge had been further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleged that the abusive behaviour had taken place. The court would have to determine the disclosure issue itself. Re B (disclosure to other parties),  All ER (D) 22 (Aug) considered:
(2) The balance that had to be struck had to accord due respect to X’s rights under article 8 of the Convention on the one hand and the rights of A and her parents under arts 6 and 8, on the other. It was not accepted that the court could state at the time of the instant proceedings that disclosure would achieve nothing of value, evidential or otherwise, for the child and her parents. As to the balance struck by the judge between contact and on the one hand and physical and mental health on the other, after allowing full weight to the impact on the physical and mental health of X, the weight to be attached to the nature of the interests in play, whilst they were very different in character, was not such that one automatically outweighed the other.
In the circumstances, the balance of rights came 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 the children’s guardian. Re D (minors) (adoption reports: confidentiality)  4 All ER 385 applied; Re B (disclosure to other parties)  All ER (D) 22 (Aug) applied; A Local Authority v A  3 FCR 202 considered. Decision of Peter Jackson J  All ER (D) 57 (May) reversed.
If any of these matters affect you directly or if you are considering making an application for a Residence or Contact Order then here at Lewis Rodgers we can offer a friendly, professional service and we have a track record of securing such orders. For further information please contact us on 01606 861858 or alternatively email us on firstname.lastname@example.org.