Withholding Disclosure in Family Cases: T (Children: Non-Disclosure) [2024] EWCA Civ 241

Articles

22/04/2024

This case concerned an appeal which overturned Mr Justice Francis’ decision to withhold disclosure of a child’s mental health struggles from their father. 

Factual and Procedural History

This appeal arose in the context of private law dispute involving two children, aged 12 and 8. In July 2023, after a two day hearing, Her Honour Judge Lynn Roberts made a live-with order in favour of the mother and reduced the amount of time the children spent with their father. Whilst Judge Roberts recorded that the children had positive experiences under their father’s care, she made a series of observations about the father’s coercive and controlling behaviour and unreasonable approach to co-parenting.

In October, the mother had, on professional advice, stopped contact between the children and their father, as the youngest child (called Tom in the judgment) began exhibiting concerning behaviours, including making statements about self-harm and suicide.  This precipitated a return to Court in November.  The mother made two statements, the second exhibiting a report from a mental health nurse which included disclosures that Tom had made and Tom’s request that his father was not informed of these disclosures.  The author of the report stated that sharing the information with the father could cause an increased risk to Tom, both from his father reacting negatively to the information and from Tom posing an increased risk to himself.

A Guardian was appointed to investigate and permission was given to withhold the statement from the father pending consideration at the High Court.

The Hearing that was the Subject of the Appeal

In January 2024, the matter came before Mr Justice Francis. Before the hearing, an agreed position had been reached, with the father seeking disclosure of that material, supported by the Guardian, who emphasised that not disclosing the information to the father would impact the feasibility and effectiveness of undertaking a psychological assessment of the family. The mother occupied a neutral position.

Mr Justice Francis heard from the mother’s and Guardian’s representatives, and crucially, without hearing from the father, delivered a closed judgment where he decided against disclosing the information to the father. He relied upon the judgment of Judge Roberts, and her negative observations of the father, concluding that he was not prepared to risk the father’s characteristic tendency to react in a controlling manner worsening Tom’s wellbeing.  He was also concerned about Tom’s trust in professionals and that he would not make future disclosures if he could not trust they would remain confidential from his father.  The judge was of the view that the psychological assessment of the family could still occur without disclosure to the father and that the matter of disclosure could be reviewed once the psychological assessment had been completed.

The father’s representatives were then re-admitted, and informed of Mr Justice Francis’ decision. They were allowed to make submissions before the judge reaffirmed his previous decision.  Mr Justice Francis then refused permission to appeal, stating whilst the case was finely balanced, he had prioritised Tom’s welfare, in accordance with the paramountcy principle. 

Grounds of Appeal

The father applied for permission to appeal, with the support of the Guardian, on the following grounds:

  1. The judge was wrong to consider that the case was finely balanced, when the Guardian and father were supportive of disclosure and the mother was neutral.
  2. The judge failed to correctly balance the father and children’s Article 6 and 8 rights.
  3. The Court failed to consider proportionality, or the safeguards that could be put in place to mitigate the risks, including those suggested by the Guardian.
  4. The Court failed to ensure fair process.

The Law

In considering this appeal, Lord Justice Jackson endorses the methods of approaching non-disclosure in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, and Re B (Disclosure to other Parties) [2001] 2 FLR 1017and Re A (Sexual Abuse: Disclosure) [2012] UKSC 60. 

In his typical style, Lord Justice Jackson helpfully synthesised a series of questions a Court should ask when asked to authorise non-disclosure in the interests of a child (paragraph 22):

“1) Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them?

(2) Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability?

(3) Can the feared harm be addressed by measures to reduce its probability or likely impact?

(4) Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure?

(5) Where the child’s interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances?

(6) Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?”

Analysis

Applying these questions, Lord Justice Jackson allowed the appeal and allowed disclosure. There are four key areas where it was found that Mr Justice Francis fell into error:

  1. Failing to ensure procedural fairness. This judgment serves as a useful reminder of the fundamental principle of natural justice, that the party against whom an order may be made deserves the opportunity to speak before the order is so made. By failing to involve the father at an earlier stage, his counsel was put in the unenviable position of trying to change the judge’s mind when he had already delivered a judgment in a closed setting.
  2. Failing to put sufficient weight on current professional views. Mr Justice Francis had, in Lord Justice Jackson’s judgment placed an overreliance on the paragraphs of Judge Robert’s judgment, against a background where the Guardian had investigated the issue and made a judgment based on the current circumstances, including Tom being calmer than at the time of Judge Roberts’ involvement. Moreover, merely asserting that the psychological assessment of the family could go on without disclosure being necessary was described as “unrealistic”, in the face of the Guardian’s objections. After all, how can you assess the father’s reaction to information without him being aware of it?
  3. Failing to consider mitigation to identified risks. This judgment is useful for parent practitioners to highlight that the process does not end when risks are identified. Professionals and the Court have a duty to consider whether mitigatory measures can be appropriately put in place to safeguard the child whilst reducing the infringement of parents’ rights. For example, the risk of Tom’s trust being broken could be mitigated by Tom not being informed that his father knew without expert guidance and strict warnings to the father to respect this.
  4. Failing to conduct an appropriately thorough examination. This was both in terms of balancing of the Article 6 and 8 rights that were engaged and in failing to conduct a sufficiently thorough investigation of what would be in Tom’s best interests, including looking at immediate and long term harm, such as the harm that Tom would experience from maintaining a burdensome secret from his father.

Conclusion

This judgment is a reminder of the high bar that must be overcome to justify withholding disclosure, especially disclosure which may have a material impact on the outcome of proceedings.

Read the judgment here.

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