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Supreme Court decides in favour of disclosure of allegations in contact case

Court required to ‘reconcile the irreconcilable’

The Supreme Court has unanimously upheld the decision of the Court of Appeal in In the Matter of A (A Child) [2012] UKSC 60. 

The issue in this appeal was whether a local authority ('ZCC') should be ordered to disclose social work records to the parties in proceedings concerning a child ('A'), which would reveal the identity of a young woman ('X') who has made allegations that she suffered sexual abuse from A's father ('F') when she was a child.

A court order had directed that ZCC should disclose the information in its possession in relation to X's allegations against A to the parents of A. ZCC applied to the court for the order to be discharged on the grounds of the severe distress and emotional harm which the removal of her anonymity would cause X to suffer. Medical evidence provided to the court from the psychiatrist treating X indicated that her physical health had deteriorated to the point of being life threatening.

Peter Jackson J in the High Court held that the records should not be disclosed. In his view disclosure was unlikely to achieve anything valuable and it would be oppressive and wrong to compel X to give evidence at a subsequent hearing. The Court of Appeal reversed this decision and ordered disclosure, on the ground that the question of whether X should give evidence would arise for decision at a later stage. By the time of the appeal hearing in the Supreme Court, inadvertent disclosure of X's identity had been made by ZCC to M and to the Guardian appointed to act on A's behalf, but not to F.

The Supreme Court has unanimously dismissed the appeal. Lady Hale, with whom the other justices agree, gave the only judgment.

The court, she said, was required to reconcile the irreconcilable. It was submitted on behalf of X that the impact of disclosure on her would be so severe as to violate her right not to be subjected to inhuman or degrading treatment protected by article 3 of the European Convention on Human Rights (ECHR), or at the very least interfere with her right to a private life under article 8. On the other side, A's right to be protected from abuse also potentially engaged article 3, and restricting contact interfered with the right to family life under article 8 on the part of A, M and F. In addition, all three of the parties to the contact proceedings – A, M and F – were entitled to the right to a fair trial of those proceedings protected by article 6. Both article 3 and article 6 rights are absolute.

Lady Hale said that the only possible conclusion was that the fair trial and family life rights of A, M and F were a sufficient justification for the interference with the privacy rights of X. It did not follow, however, that X would have to give evidence in person in these proceedings. Disclosure might be enough to resolve matters either way. If a hearing was required, up to date medical evidence would be obtained for X and measures to protect her from courtroom confrontation could be considered. If she was too unwell to cope with oral questioning the court might have to do its best with the record of what she has said previously, perhaps supplemented by written questions put to her in circumstances approved by her doctor. The only concern of the court in family proceedings was to get at the truth.

This news item is based on the Supreme Court's press summary. To read the fuller summary, please click here. To read the judgment itself, please click here.