On 21 September 2012, the Court of Appeal handed down judgment in J (A Child: Disclosure) [2012] EWCA Civ 1204. The Court was asked to consider an application for disclosure relating to allegations made against a father who had been anonymously accused of serious sexual abuse.

Background

The parents of a child, A, separated when she was only 6 months old. The father returned home to Australia, but applied for a contact order in August 2003. After a number of subsequent orders, a final order was eventually made in February 2009 providing that A stay with her father for two weeks every February from 2010 onwards and for four weeks every summer.

In March 2010, the mother was informed by local authority social workers that a young person (X) had made serious allegations of sexual abuse against the father.

The mother was told that the allegations were ‘credible’ but was not provided with X’s name or the substance of the allegations.

On the basis of these allegations, the mother applied to vary the existing order so that contact would be restricted to shorter, supervised periods.

The local authority consequently sought to establish a Public Interest Immunity so as to prevent disclosure to the father or mother of the substance of the allegations and the identity of X.

Findings

At first instance the Court found in favour of X retaining her anonymity and the father appealed.

Lord Justice Thorpe, sitting in the Court of Appeal, provided the lead judgment and noted that a balance needed to be struck between the competing rights of each party under the European Convention on Human Rights.

On one side, the rights of A and each of her parents under both Article 6 (Right to a fair trial) and Article 8 (Right to respect for Private and Family Life) were clearly best served by full disclosure of the sensitive material.

Conversely, X, who suffered from mental and physical health difficulties and who strongly opposed disclosure, was also entitled to respect for her private life under Article 8.

Lord Justice Thorpe considered these competing rights in the context of the Courts comments in Re B, R and C (Children) [2002] EWCA Civ 1825:

“Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure.”

Lord Justice Thorpe noted that whilst no one right attracted automatic precedence over another, Article 8 rights are qualified to allow proportionate interference when necessary, whereas those under Article 6 are not qualified.

He stated that in this instance for A and her parents the undisclosed material was absolutely central to the issue of contact. He therefore concluded that there was a high priority to be put upon both parents having the opportunity to see and respond to the material.

On this basis the Court found that the balance of rights came down in favour of disclosing X’s identity and the substance of her sexual abuse allegations.