Re J (A Child: Disclosure): Public Interest Immunity

Lord Justice McFarlane
Re J (A Child: Disclosure) [2012] EWCA Civ 1204 concerned an appeal against the dismissal of an application for disclosure by the local authority of details relating to serious allegations of sexual abuse against the father.

The background to the case was that the parents separated in 2002, when the child, A, was just six months old, and the father returned to his home country of Australia. He applied for contact and a final order was eventually made in February 2009 providing for A to stay with him 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, although no details of the allegations were disclosed. On the strength of this, the mother applied to vary the contact order by restricting the contact to shorter, supervised periods.

The parents and A applied for an order requiring the local authority to disclose the identity of X and/or the details of her allegations to the court, the parents and the children's guardian. That application was dismissed by Mr Justice Peter Jackson (who had received from the local authority the documents in respect of which they sought to establish Public Interest Immunity), primarily because of the potentially serious effect of disclosure on X's health (X claimed to have been the victim of the abuse).

The guardian appealed.

Giving the leading judgment, Lord Justice McFarlane in the Court of Appeal (which had also been supplied with the confidential material by the local authority) began by setting out the positions of the parties. Apart from the obvious positions of the guardian, the father and X, the mother (who had found out the identity of X, spoken to her and believed her allegations) did not support the appeal and the local authority adopted a neutral stance.

He went on to look at how the case might proceed if the disclosure did not take place, having regard to the fact that the judge knew the details of the allegations, and concluded (at paragraph 38):
" 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."
Accordingly, there were only two options: either the disclosure took place and the case was heard by the same judge or there was no disclosure and the case was heard by a different judge, who was "in a similar state of ignorance to that of the father".

He then set out the legal context on Public Interest Immunity, in particular the words of Munby J (as he then was) in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, that the case for non-disclosure must be 'convincingly and compellingly demonstrated' and will only be sanctioned where 'the situation imperatively demands it', and the ECHR rights that were in play in relation to the issue of disclosure: under Articles 3 (prohibition of inhuman or degrading treatment - i.e. if X were required to give evidence), 6 (right to a fair trial) and 8 (right to privacy).

He agreed with Peter Jackson J that in terms of characterisation of the impact upon X in terms of the ECHR, that the act of disclosure fell short of engaging Art 3 and did not amount to inhuman or degrading treatment (paragraph 79). With regard to A, however, the impact of her Art 3 rights upon the issue of disclosure was marginal, but such weight as it had pointed in favour of disclosure (paragraph 84).

After discussing Peter Jackson J's reasons for coming to his decision, Lord Justice McFarlane drew matters together (at paragraph 90):
"...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."
He held (at paragraph 94(c)):
"If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A's family. In fact, X's allegations represent the entirety of the 'issue' in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material."
In the circumstances, he concluded (at paragraph 95) that the balance of rights came 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.

Lady Justice Hallett and Lord Justice Thorpe gave concurring judgments.