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Court of Appeal orders disclosure of secret accuser’s identity in contact proceedings

Court balances accuser’s rights with those of the parents

The Court of Appeal has ordered that a young person who made sexual abuse allegations against a father of an 8 year old girl, which were considered in contact proceedings concerning her, must be identified. The judgment in J (A Child: Disclosure) [2012] EWCA Civ 1204 can be read here.

The child, who is now aged 10 years, is the daughter of Ms G and Mr J ('mother' and 'father'). Her parents married in 2000 but separated in December 2002, when A was only 6 months old. Following separation, the father returned to his home country of Australia, but applied for an order for contact to A in a county court in August 2003. This culminated in an order in 2009 providing for A to stay with her father for two weeks every February from 2010 onwards and for four weeks every summer.

In March 2010 local authority social workers contacted the mother and informed her that a young person ('X') had made serious allegations of sexual abuse against the father. The mother was not told any detail of the allegations and was told that the young person did not wish her identity to be revealed to any person. The social workers did, however, tell the mother that the local authority considered that the allegations were 'credible' and advised the mother that she should not allow A to have unsupervised contact to the father.

The issue of disclosure came before Mr Justice Peter Jackson for the first substantive hearing in 2011. The judge considered Arts 3, 6 and 8 of the ECHR. Peter Jackson J concluded that X's wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her 'private life' within Article 8. Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

Peter Jackson J dismissed the application for disclosure of further information about X and her allegations.

In the Court of Appeal, McFarlane LJ, giving the unanimous judgment of the court, said:

"[I]n my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong.

"In the light of the conclusion that I have just described, the option of non-disclosure but the case remaining with the judge was not one that was properly open to the court in this case. I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play."

He considered the options available to the court and went on:

"The balance that has to be struck must accord due respect to X's Art 8 rights on the one hand and the Art 6 and 8 rights of A and her parents, and the marginal impact of A's Art 3 rights, on the other. In conducting the balance no one right attracts automatic precedence over another, however Art 8 rights are qualified whereas those under Art 6 are not qualified. The presence of A's Art 3 rights is to be highlighted; they are of marginal impact on this issue, but their presence flags up the importance of the issue (serious sexual abuse) to which the disclosure relates. The evaluation of necessity and proportionality is to be conducted on the basis of the current situation, taking account of the fact that the state has already seen fit to breach X's Art 8 rights by making the disclosure that has taken place to the mother and the state has effectively required the mother to commence these proceedings with a view to achieving orders that protect A from a risk that the local authority has described as credible. In terms of A's interests and those of her parents, the undisclosed material is absolutely central to the issue of contact that has been brought before the court."

He concluded:

"I am clear that the balance of rights comes down in favour of the disclosure of X's identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A's children's guardian."

Roger McCarthy QC and Kate Purkiss, both of Coram Chambers, represented the local authority. Paul Storey QC, of 29 Bedford Row Chambers, and Ms Camille Habboo, of 14 Gray's Inn Square,(instructed by Blackfords LLP) represented the children's guardian and Sarah Morgan QC and Andrew Bagchi, both of 1 Garden Court, (instructed by Russell Cooke Solicitors) represented X (the intervenor). The mother and father represented themselves.

The judgment can be read here.