"Secret" disclosure within family law proceedings

“... it is a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.” [Lord Mustill in Re D at 603-604].

In circumstances where calls for more transparency are louder than ever, you might be surprised to learn that, in some cases, the court may be permitted to withhold relevant disclosure from one party to proceedings.

The recent case of Re T (Children: Non-Disclosure) [2024] EWCA Civ 241 reinforced the proper approach to dealing with court-sanctioned non-disclosure, as set out in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, [1995] 2 FLR 687.

General duty to disclose

The starting point is one of a general duty to disclose relevant material. In the interests of fairness, all parties to the proceedings, including the decision maker (generally a Judge or Magistrates) have sight of any disclosure relevant to the issues in dispute. This means that ordinarily, it will not be possible to disclose information to the court and to withhold that information from another party to proceedings (there are limited exceptions to this, for example where one party’s address is withheld from another due to safety concerns).

In circumstances where one party is seeking to withhold disclosure from another, the court is required to balance competing principles including the general duty of disclosure and Article 6 right to a fair trial, against the risk of harm to a child and Article 8 right to private and family life.

Below we explore two cases where these competing considerations were at the heart of the court’s decision, when considering whether relevant disclosure could properly be withheld from one party.

Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, [1995] 2 FLR 687

In the case of Re D, the court considered the question of withholding relevant information from one party in the context of an adoption application. The circumstances were that a mother opposed an application made by her former husband and his wife for the adoption of her two sons. If successful, the application would effectively legally extinguish the mother’s role in the children’s lives. A guardian was appointed by the court on behalf of the children to ascertain their wishes and feelings and prepare a report for the court.

None of the parties had sight of the Guardian’s report. The mother sought disclosure of two sections of the report which expressed, in detail, the children's wishes and feelings towards their parents. Initially, the mother’s application for disclosure was refused. She successfully appealed. The court had to balance the presumption of disclosure in favour of the mother against the risk of harm to the children.

The court held that there was a general duty in favour of disclosure to allow the parties to see information that might be considered by the court in reaching its decision. Lord Mustill summarised the position as follows:

"(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."

Re T (Children: Non-Disclosure) [2024] EWCA Civ 241

This case differs from Re D insofar as it is not an adoption application, but proceedings between two parents concerning the care arrangements for their two children, aged 12 and 8 respectively.

The parties separated in 2021. Initially, the children were spending six nights per fortnight with their father and half of the school holidays. The father was seeking a shared live-with order, on the basis that the children would live with both parents and spend equal time with them. The mother’s position was that shared care was not working and the children’s time with the father should reduce.

The matter was listed for a final hearing where the Judge made orders broadly in accordance with the mother’s position i.e., that the children should live with the mother and spend time with the father on four nights per fortnight, with contact after school on one day in the intervening week, and half of the school holidays. The Judge found that the father had behaved unreasonably and that his behaviour could be described as coercive and controlling.

Following this, the position deteriorated and the younger child in particular showed signs of distress. This culminated in the mother seeking advice from professionals and informing the father that his contact with the children would stop. The parties returned to court.

The mother sent to the court a report from the school mental health nurse, within which the child had asked for information not to be shared with the father. The author of the report expressed concerns regarding the risk of harm to the child if the report was shared. The Judge therefore gave permission for the report not to be shared with the father. A Guardian was appointed on behalf of the children who then prepared a note, following conversations with the parties, the children, and the mental health nurse, which was shared with the court but not the parties.

The father sought disclosure of material that had been withheld from him; his request was supported by the Guardian. The Judge gave a closed Judgment, having heard from representatives for the mother and the guardian (not the father), within which he confirmed that he would not be ordering disclosure of the withheld material to the father due to concerns surrounding the increased risk of harm to the child if he did so. The father was informed of the Judge’s decision, his representatives were entitled to make submissions on his behalf, and he sought permission to appeal.

On appeal, the court considered the principles set out in Re D which are summarised above. At paragraph 22, elaborating on Re D, Lord Jackson said the following:

“A court that is asked to authorise non-disclosure in the interests of a child should therefore ask itself these questions:

(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?”

Ultimately, the father's appeal was allowed, and the disclosure ordered to be provided to him subject to certain conditions (which are set out at paragraph 30 of the judgment).

Lord Jackson reported that he was not satisfied that the Judge at first instance had sufficiently considered all the principles set out above, including how any risk of harm to the child could be mitigated, particularly in circumstances where the child was precluded from any contact with his father.

Summary

The cases set out above pose some interesting questions regarding disclosure in proceedings relating to children, and in what circumstances it is fair, on balance, to withhold relevant disclosure from one party.

The court will only be persuaded to do so in limited circumstances, such as where the risk of harm to the child outweighs all other factors, including the parties Article 6 right to a fair trial, and where this risk cannot be sufficiently mitigated.

If you have any queries regarding the issues raised within this piece, including whether it is likely to be appropriate to withhold information from one party to proceedings, it is important that you seek advice from a family law specialist. Our Family Team are all members of Resolution, an organisation committed to approaching family matters in a non-confrontational manner and would be happy to arrange an initial conversation with you.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.