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Honour punishments and non-disclosure in care proceedings

Daniel Kingsley of 1 Pump Court reviews applications for the withholding or non-disclosure of information in care proceedings in the light of the Court of Appeal's judgment in A v A Local Authority [2009] EWCA Civ 1057

Daniel Kingsley, barrister, 1 Pump Court

Daniel Kingsley, barrister, Family Team, 1 Pump Court Chambers

This article concerns applications for the withholding or non-disclosure of information within Children Act proceedings, and within care proceedings in particular.  It is prompted by the recent lifting of the embargo placed by the Court of Appeal on the reporting of a decision concerning such cases, in A v A Local Authority [2009] EWCA Civ 1057, reversing the decision of Hedley J [2009] EWHC 1574.  I acted for the child both in the High Court and Court of Appeal. 

Although our case dealt with a feared honour punishment, the law set out below is applicable to any application for non-disclosure or withholding of information.  It is instructive to examine what happened in A v A Local Authority, as it gives an outline of the existing law on non-disclosure and raises one or two novel points.

The facts that gave rise to the application to withhold information are somewhat unusual.  The mother, who was involved in care proceedings concerning her daughter, revealed certain information to a social worker, which the social worker considered relevant to the care proceedings. That information included the fact that during a very recent holiday abroad, which she had taken without her husband but with her child and some family members, she had had casual sexual intercourse with three strangers whom she had met on holiday, and had done so with the encouragement of one or more family members who were with her on that holiday. On one of these three occasions the child was sleeping in the next bed in the same room.  This information was largely confirmed to the social worker by one of the mother's relatives who was present on the trip.

Having revealed this information to the social worker, she then asked the social worker not to reveal this information to her husband, stating that as a devout Muslim he would be likely to punish her severely if this information were revealed, and perhaps even arrange to have her killed.  The mother told another professional that she and her family members would be considered to have dishonoured the family and that she was scared that if this information was shared she would be at risk of an "honour killing".

Social Services considered that the information revealed was relevant to the care case, as it related to the mother's ability to look after the child and also to her state of mind, and in ordinary circumstances would have disclosed it immediately to all parties including the father.

To make matters more complicated, the information was then erroneously and inadvertently disclosed by the local authority to the father's solicitors.

It became apparent that either the local authority or mother would be seeking an order to permit this information to be withheld from the father (at least on a temporary basis) and the matter was transferred from the county court to the High Court for consideration of such an application, where the case came before Hedley J.  (The guidance from caselaw is that such applications should usually be transferred to the High Court for decision – see Re M (Disclosure) [1998] 2 FLR 1028 at 1031 approving the guidelines set out by Johnson J in Re C (Disclosure) [1996] 1 FLR 797.)  In summary that guidance is:

(1) The application should be transferred to the High Court.

(2) Notice of the application should be given to the party from whom the material is intended to be withheld.

(3) It is essential that any party to whom the information was not to be revealed should have the opportunity of making representations to the court.

(4) Finally, in many cases, it will be appropriate to follow the practice endorsed in Re K in 1965, namely disclosure in the first instance to counsel only, and thereafter counsel would have the opportunity to apply for onward transmission to the client.

Upon transfer, the mother did make an application for non-disclosure of the information on the basis that she would be at serious risk of an honour punishment or killing if the information were to be disclosed to the father.  The position of the local authority and guardian was that this was information that could and should ordinarily be disclosed to the father, but that they could not express a final view on whether or not it should be disclosed until they knew the magnitude of the risk of harm to the mother were such information to be disclosed.

The father's representatives obtained permission from the father to argue the case for disclosure on his behalf, whilst agreeing that they would not disclose the information itself to the father until the court had made its decision.  This allowed his representatives to have access to all relevant documentation, without being in conflict with their client whilst this issue was litigated (following the guidance above in Re M).

It is worth setting out at this stage the existing case-law on non-disclosure of information in circumstances such as these.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687.  The test is:

"(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party… 

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child. 

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur. 

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case. 

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling."

The only major modification made to this test by later cases has been brought about by the Human Rights Act 1998.  Its effect is to widen the class of people who must be considered in respect of possible harm on disclosure, so that the above clauses must be read as including "significant harm to the child or any other person" (Re B [2001] 2 FLR 1017).

In Re B Munby J stated that (emphasis is mine):

"Whatever may have been the position in domestic law prior to the coming into force of the Human Rights Act 1998 and at the time when the House of Lords decided Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, sub nom Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687 s 6(1) and 6(3)(a) of the Act forbid me, as a public authority, to act in a way which is incompatible with a Convention right.

The Act accordingly, in my judgment, requires me to have regard in this context to the Art 8 rights of the mother and W as well as of the children. Section 2(1) of the Act requires me to 'take into account' any judgment of the European Court of Human Rights which is 'relevant to the proceedings' with which I am concerned. The Court's decisions in Doorson v The Netherlands (1996) 22 EHRR 330, Z v Finland (1998) 25 EHRR 371 and Campbell and Fell v United Kingdom (1984) 7 EHRR 165, in particular, and the Privy Council's analysis in Brown v Stott (Procurator Fiscal, Dunfermline) and Another [2001] 2 WLR 817 make it impossible in my judgment to confine the exception recognised by Lord Mustill in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, sub nom Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687 to cases where there is reason to fear harm to the child(ren).

There can be cases, in my judgment, where a litigant's right to see the documents may have to give way not merely in the interests of the child(ren) involved but also, or alternatively, to the Art 8 rights of one or more of the adults involved, whether as victim, party or witness. If and insofar as the House of Lords decided the contrary in Re D (and it is not at all certain that it did), then to that extent its decision, in my judgment, can no longer stand in the light of the Human Rights Act 1998. In my judgment, Re D can no longer stand as authority for the proposition that only the child(ren)'s interests can be taken into account."

Munby J went on to say:

"[A] limited qualification of R's right to see the documents may be acceptable if it is reasonably directed towards a clear and proper objective – in other words, if directed to the pursuit of the legitimate aim of respecting some other person's rights under Art 8 – and if it represents no greater a qualification of R's rights than the situation calls for. There may accordingly be circumstances in which, balancing a party's prima facie Art 6 right to see all the relevant documents and the Art 8 rights of others, the balance can compatibly with the Convention be struck in such a way as to permit the withholding from a party of some at least of the documents. The balance is to be struck in a way which is fair and which achieves a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved.

…Non-disclosure can be justified only when the case for doing so is, to use Lord Mustill's word, 'compelling' or where it is, to use the Court's words in Campbell and Fell v United Kingdom (1984] 7 EHRR 165, 'strictly necessary'.

Moreover, to adopt Lord Mustill's word, the court must be 'rigorous' in its examination of the risk and gravity of the feared harm to the child or other person whose Art 8 rights are said to be engaged.

Finally, any difficulties caused to a litigant by a limitation on his right to see all the documents must be sufficiently counterbalanced by procedures designed to ensure, in accordance with the principles in (2) above, that he receives a fair trial."

These statements were later approved by the Court of Appeal in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828.

The House of Lords therefore envisaged a 3 stage test:

(i) Does the disclosure of the material involve a real possibility of harm to the child [or any other person]?

(ii) If yes:  is it the case that the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that the harm will occur and the gravity of the harm if it does occur?

(iii) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material.  In the latter regard the court should take into account the importance of the material to the issues in the case.

Their Lordships therefore envisaged that before making a decision either way on the issue of disclosure a judge would have before him (if at all possible):

        (i) Evidence as to whether there was a risk of harm to a child or any other person if the material in question is disclosed. 

        (ii) Evidence as to the magnitude of the risk that the harm will occur.

        (iii) Evidence as to the severity of the likely harm if it does occur.

Returning to the case of A v A Local Authority, the guardian expressed an opinion that she could not form a view (and indeed the court should not form a view) on whether or not the information in question should be disclosed without some independent assessment as to the magnitude of the risk involved.  It was therefore agreed between the parties that a culturally appropriate independent social worker, "H", would carry out a risk assessment and report on the magnitude of risk.  Having heard these submissions and having read the evidence before him, Hedley J agreed to the instruction of H to answer these questions.

It was envisaged that H's work (and therefore report) would be completed in two stages1.  At Stage 1 she was to give a preliminary view of the situation based on the evidence in the papers.  It was envisaged that she would go on at Stage 2 of her work to speak to family members and provide a detailed assessment of risk provided that: 

(i)  She considered that she needed to speak to such family members in order to carry out a proper assessment of risk and 

(ii)  It was safe for her to do so without the father being alerted to the very information that it might be sought to withhold from him.

H's first report was received in due course and in summary she concluded in her written and oral evidence that:

(a) The risk of the mother being punished for adultery was "somewhat high".

(b) Physical punishment could not be ruled out.

(c) It would be difficult to assess how this particular family would react to these disclosures without interviewing them.

(d) She needed to interview the family in order to provide the court with a meaningful risk assessment.

(e) She was able to carry out this exercise without significant risk of disclosure of the relevant information.

The mother, supported by the local authority and the guardian therefore requested that the expert be permitted to undertake the work that she stated that she required to carry out in order to complete her reporting and give her considered assessment of risk.  The guardian restated her position that disclosure of this information might well be in the child's interest, but that the court could not decide that until the expert had been allowed to complete her work and all parties were in possession of the completed risk assessment.

The father submitted through counsel that the overall risk was so low on the facts of the case, that no further work should be done by the expert and the information should be released forthwith.

A further point made by the guardian was that the other family members who were implicated by this information had not yet had a chance to make representations to the court regarding its disclosure and should at least be given an opportunity to do so before any final order regarding disclosure was made.  This was important in the light of the guidance given by Munby J in Re B cited above.

Hedley J accepted the submissions made by the father that no further work needed to be done, and ordered immediate disclosure of the information. 
In his judgment declining to allow the expert to complete her risk assessment, the judge asked himself the question as to "whether their existed any proper evidential basis from which a risk which required assessment could be identified".  He stated that he concluded on the basis of the written evidence that the evidence was not strong enough to persuade him that such a risk existed.

The mother appealed, supported by the local authority and the guardian.

The Court of Appeal allowed the appeal and ordered that H should be allowed to complete her risk assessment.

As to the main grounds for allowing the appeal, I can do no better than to quote Wilson LJ at paragraph 28:

"28. The question raised by this appeal is whether in the event the judge observed Lord Mustill's injunction to be rigorous in examination of the risk and gravity of the feared harm. At the hearing on 26 March 2009 the judge did not dissent, could not reasonably have dissented, from the submissions at the Bar that a professional assessment of the risk was required; so he made the direction that Mrs H should prepare it. What had occurred between 26 March and 10 June to eliminate or diminish the need for the assessment? Nothing at all. On the contrary, the only development was the contribution of Mrs H herself, following paper review, to the effect that the expressed fears of the mother and sister could not be discounted and that the case required her to be enabled to interview the father and the mother's father, and perhaps also the three women, and to complete her report.

29. This leads to the question whether the judge squarely confronted Mrs H's evidence and provided a reasoned acknowledgement of the fact that his decision ran contrary to her recommendation. In effect the judge's only reference to the contribution of Mrs H was as follows:

"Mrs H gave oral evidence and said that she could not complete the risk assessment without speaking to the parties. In particular she needed to speak to [the mother's father] and the father (without of course disclosing the information) in order to be able to assess the magnitude of the risk and its capacity to be managed."

But, with great respect to the judge, the gist of Mrs H's evidence was not that she was merely unable to complete her assessment without speaking to family members but that in her perception the circumstances of the case required her risk assessment to be completed; and that the fears expressed, namely that disclosure might lead to serious violence or, at least, to the ostracisation of the mother and of any child of hers, could not at that stage be discounted."

This was enough to dispose of the appeal, but there was a further point to consider and this was the position of the female relatives who had not had an opportunity to make representations to the court prior to the judge making his order for disclosure.  Again, I can do no better than to quote Wilson LJ at paragraph 32:

"32. My reference to the lack of oral evidence from the sister leads to a subsidiary point. Like the mother, the sister claimed that disclosure would also have serious adverse consequences for herself, her daughter and the aunt. It is common ground that the rights of those three persons under Article 8 were engaged. The circuit judge had defined the final issue as being whether and to what extent the sister and the aunt should be given the opportunity to make representations. At least by Miss Moore, Mrs Hossain had been regarded as an appropriate conduit for conveyance to the court of their views following interview. Although reference was made to their interests at the hearing on 10 June, there is no reference to them in the judge's judgment. In the absence of any consideration of the Convention rights of those three persons, I find it impossible to avoid the conclusion that, by mistake, the judge acted incompatibly with them."

It followed that the Judge should have given the female relatives who were implicated by the information the opportunity to make representations to the court prior to a decision being taken by the court about whether it should have been disclosed.

Wilson LJ concluded at paragraph 33:

"The court's choice between disclosure and non-disclosure has to be made on an informed basis. The grave complications attendant upon non-disclosure have to be weighed against the risks, potentially of great seriousness, attendant upon disclosure. The judge's decision was premature. Even if the ultimate decision were to be to authorise disclosure, it would be likely that the court would need to consider whether all the material needed to be disclosed and, in particular and probably with the help of Mrs H, the least unsafe method of effecting disclosure."

It should also be noted that counsel for the father raised the issue as to how she might advise him as to whether he should consent to be interviewed by Ms H, given that he did not know and could not be told the precise purpose of the interview.  In response, Wilson LJ noted at paragraph 36 that the father did know that there was an application to withhold information from him and he could properly be told that the interview related to that.

How should such cases be approached in future?

It is respectfully suggested that in future cases where it is alleged that disclosure of information may cause physical harm to any party the court should:

1. Temporarily authorise the withholding of the relevant information whilst the following steps are carried out.

2. Ask the representatives for the party from whom evidence is sought to be withheld to obtain their client's permission that they receive the information concerned without passing it on to that party pending a decision by the court (the Re K procedure set out above in Re C and Re M).  Alternatively a "special advocate" procedure could be used.

3. Allow all persons (whether parties or not) concerned by the disclosure of the information to file statements in which they set out their positions in relation to such disclosure, including what they fear might happen to them if the information is disclosed and any evidence in support of those fears.

4. Permit any party who has fears about disclosure to give oral evidence about their fears and the sources of those fears.

5. Make a decision, having heard the evidence, as to whether the evidence is obviously so weak that the court can safely proceed without a risk assessment.

6. Order a risk assessment unless the court is persuaded that the evidence is too weak to justify it.

7. Allow the risk assessment to run until its conclusion and then apply the guidelines in the cases cited above (Re D, Re B and Re X) in balancing the need for disclosure against the magnitude of harm as assessed.

It is perhaps stage 5 above which will cause the court the most anxious concern.  How weak does the evidence need to be before the court can safely say that no risk assessment is required, where a person is contending that they risk serious physical harm if information is disclosed?  It is suggested that only in the plainest cases would it be appropriate to proceed without a risk assessment.

In our case of A v A Local Authority the risk assessment was indeed eventually allowed to run its course. H's assessment concluded that there was on the facts of the case no significant risk of physical harm to the mother or any of the female relatives if the information was disclosed.  All parties agreed that it could be disclosed to the father and the injunction concerning it was discharged.

Had the court allowed the risk assessment to be completed at the first time of asking, this conclusion would have been reached several months earlier than it eventually was, allowing the case to progress without too much unnecessary delay.  The judge may now reflect that he was proved correct by the final outcome of the risk assessment, but it is suggested that the guidance of the Court of Appeal underlines that this must be a decision to be taken once a risk assessment is completed and not part way through.

Daniel Kingsley
1 Pump Court

1 Counsel for the father's recollection of what was envisaged differs somewhat in that she does not believe that a two stage process was initially envisaged.  She does however agree that the content of Ms H's first report made a two stage process inevitable.