Supreme Court rules in favour of disclosure

A fascinating judgement has been handed down today by the Supreme Court in the case of In the Matter of Re A (A Child) 2012. What makes this case so fascinating is the application of the Human Rights Act 1998 to the case.

This was a case which was appealed to the Supreme Court from a judgment by the Court of Appeal, who had in turn allowed an appeal from a decision of Mr Justice Peter Jackson in the High Court.

The facts were straightforward. A complaint had been made by X, to the local authority that F (A the child’s father) was a child abuser. They informed A’s mother who was separated from F. She was advised to change contact arrangements between F and A to ensure that these only continued if supervised. She made her application to the court. F strongly denied the allegations of sexual abuse and the court ordered the Local Authority to disclose the information in its possession to both the mother and the father. The local authority appealed to the High Court and Mr Justice Peter Jackson refused to order disclosure. The Court of Appeal reversed that decision.

By the time of the Supreme Court hearing, both the mother and the court-appointed guardian for the child had both inadvertently learned of the identity of X. Only the father still did not know.

It was argued that X was apparently likely to suffer severe distress and emotional harm if her anonymity was removed. A psychiatric report to that effect indicated deterioration of her health to the point of being potentially life threatening, as a result of stress. She was likely to require measures to be put in place in any hearing took place between the mother, the father and her, because she would be a highly vulnerable witness.

The Supreme Court had to apply various articles of the European Convention on Human Rights, which was brought into force by the Human Rights Act 1998.

They were:

• Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
• Article 6: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
• Article 8: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

Articles 3 and 6 are absolute.

The Supreme Court also had to consider the public interest immunity argument put forward by the local authority because of the public interest in encouraging members of the public to come forward, whether as witnesses or victims, to help authorities protect children.

This seems like a powerful argument. If a member of the public believes that their “whistle blowing” might end them up in court – are they still likely to come forward? Would that put more children at risk? But this argument, as the Supreme Court made clear, is not absolute and must also be balanced against the public interest in a fair trial. Would it be right for the evidence against the father not to be fully tested in court?

The court found that it would not. They ordered disclosure, so that X’s allegations could be properly tested, either protecting the child A from any risk of harm by the father or allowing her to resume her normal relationship with him.

The impact on X under Article 3 had to be still taken into account, but as she was already receiving specialist medical treatment from a psychiatrist and physician, who would do their utmost to prevent any further suffering, disclosure would not violate her rights, the Court ruled.

The court then balanced X’s rights to a respect for private life with the interests in disclosure. In civil cases the court has no power to order certain material closed, and even if in children’s cases the courts had more latitude there were still powerful arguments why it should not be extended into the normal principles of a fair trial. The father could not challenge the allegations without becoming aware of X’s identity.

So the only possible conclusion, taking into account the rights to a fair trial and family life held by the father, the mother, and A, was that there was sufficient justification for the interference with the privacy rights of X.
The court also pointed out that X might still not have to give evidence and disclosure might be enough to resolve the case. If a hearing was required, she might be protected by not having to personally appear in court or even give written answers.

The court concluded by reminding us that:

“The only concern of the court in family proceedings was to get at the truth.”