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London Borough of Brent v N and P [2005] EWHC 1676 (Fam)

Restriction placed on a solicitor not to disclose to his client the HIV positive status of the client’s daughter’s foster parent.

London Borough of Brent v N and P [2005] EWHC 1676 (Fam)

Family Division: Sumner J (27 July 2005)

Restriction placed on a solicitor not to disclose to his client the HIV positive status of the client's daughter's foster parent.

This case arises from the placement with foster parents, Mr and Mrs N, of a two-year-old girl, P, in respect of whom an interim care order had been obtained by the applicant local authority in October 2003. The local authority was aware that Mr N was HIV positive. When the local authority proposed that P should go to live with her father, S, and his partner, T, Mr N objected to the local authority informing S and T of his HIV positive status.

The local authority issued an application seeking permission to disclose Mr N's medical status to S and T. Because of the nature of the application, no notice was given to S or his solicitor, Mr M. A hearing on 20 May 2005 was adjourned by Sumner J for a medical report to be obtained. Coincidentally, Mr M appeared before the judge in another matter on the same date. Sumner J informed Mr M that the local authority's application was being heard before him. At Mr M's request, Sumner J gave a direction that, pending judgment, Mr M was not to inform S of the local authority's application.

The medical report produced at the subsequent hearing concluded that the prospect of any transmission of the disease from Mr N to P was negligible. In argument, it was not disputed that to disclose a person's medical condition to a third party without their consent was a breach of the right to respect for one's private life under Article 8 of the European Convention on Human Rights.

Held, that no duty to inform the parents arose, because:

(i) Disclosure impinged Mr N's right to respect for his private life under Article 8.
(ii) It would be in breach of the duty owed to Mr N to disclose confidential details relating to his health.
(iii) There was no need for such disclosure. The right of a mother and father to know of any risk to which their child might be exposed whilst in care did not arise where the risk was negligible and the disclosure was opposed. Serious reasons were required and they had not been established.
(iv) Where the risk was not negligible the duty to disclose might overcome Mr N's rights and the duty owed to him. Each case would be dependent on its own facts.

Accordingly, it would be directed that the restriction on Mr M should continue, including the giving of this judgment. Liberty to Mr M to apply.

Read the full text of the judgment here