Re A (A Child) (Family Proceedings: Disclosure of Information)
| Jurisdiction | England & Wales |
| Judge | Lord Clarke,Lord Neuberger,Lord Wilson,Lady Hale,Lord Reed |
| Judgment Date | 12 December 2012 |
| Neutral Citation | [2012] UKSC 60 |
| Date | 12 December 2012 |
| Court | Supreme Court |
[2012] UKSC 60
Lord Neuberger, President
Lady Hale
Lord Clarke
Lord Wilson
Lord Reed
Appellant
Sarah Morgan QC
Andrew Bagchi
Lucy Sprinz
(Instructed by R Solicitors)
Respondent
Paul Storey QC
Camille Habboo
(Instructed by B Solicitors)
Respondent
Frank Feehan QC
Gemma Taylor
(Instructed by Bar Pro Bono Unit)
Respondent
Jane Crowley QC
Sharon Segal
(Instructed by Bar Pro Bono Unit)
Respondent
Roger McCarthy QC
Kate Purkiss
(Instructed by Legal and Democratic Services, ZCC)
Heard on 29 November 2012
Lady Hale (with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Reed agree)
We are asked in this case to reconcile the irreconcilable. On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. These interests are not only private to the people involved. There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm.
M, who is British, and F, who is Australian, married in 2000 and lived in England. A was born in June 2002. M and F separated in December 2002. A remained living with M and F returned to live in Australia in 2003. He applied for contact with A and there have since been six court hearings and six contact orders designed to ensure that A could see her father when he came to England. The most recent of these, made in February 2009, provided for A to stay with her father during his expected visits to England in February and summer 2010 and in later years.
In late 2009, X alleged that she had been seriously sexually abused by F when she was a young child. This account was first given to some adults she knew, who reported the matter to the local children's services authority. Social workers investigated and formed the view that the allegations could be true. X was however adamant that she did not want any action to be taken on her allegations or her identity revealed to anyone. In March 2010, knowing that F would be coming to England to see his daughter, the local authority informed M that a young adult had made serious allegations against F which the authority regarded as credible and that she should take steps to protect A from the risk of sexual abuse by F. After some "keep safe" work with A, and having advised M not to allow F to have unsupervised contact with A and to seek legal advice, the local authority closed the case.
In May 2010, M applied to vary the contact order made in February 2009. The county court ordered the local authority to disclose the information about the allegations in its possession to the parties. The local authority resisted this because they wished to preserve X's confidence and her level of distress indicated that revealing her identity would expose her to the risk of further serious emotional harm. They recommended that contact between A and F be supervised pending the resolution of the issue of whether F presented a risk to A. The contact order was varied to this effect in September 2010.
After an inordinate delay, the proceedings were transferred to the High Court and A was joined as a party to the proceedings, represented by a Children's Guardian. When the matter eventually came before Peter Jackson J in September 2011, he adjourned it so that a report could be obtained from Dr W, a consultant psychiatrist who has been treating X since 2010, and X could be informed both of the advantages to A of her taking part in the proceedings and of the measures available to protect vulnerable witnesses.
In January 2012, Dr W produced two reports, one a full report reviewing X's medical and psychiatric records in detail and giving her answers to the specific questions asked by the judge, the other a shorter edited version but setting out her opinion and answers in identical terms. This Court has seen only the edited version. The salient points are as follows:
(i) X has a long history of repeated presentations with medically unexplained symptoms beginning in early childhood.
(ii) There appears to be a close temporal relationship between X's reported experiences of abuse and her presentation with episodes of medically unexplained symptoms.
(iii) Most recently, X has experienced episodes of physical illness which have at times been life-threatening. It is the opinion of a number of medical professionals caring for her that psychological factors are, at the very least, exacerbating her symptoms. X has received medical treatment for her condition which has had a number of damaging side-effects and there has been a significant deterioration in her health.
(iv) There does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from the "legal issues".
(v) X feels that her initial disclosure put in motion a chain of events which has left her feeling distrustful and lacking confidence in processes that should have been protective of her. It is her perception that, despite reassurances about confidentiality, it has at times been breached. She was also led to believe that she would not be required to speak of the allegations again and the present situation has undermined her confidence in the system.
(vi) In answer to the specific questions:
(a) The psychological/psychiatric implications for or effects upon X regarding the disclosure of social services records to the parties:
"It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy."
(b) The psychological/psychiatric implications for or effects upon X of being summoned to court to give oral evidence about the allegations documented in the said records:
"My opinion on this is as above. Being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health."
(c) X's capacity with appropriate support to participate in the court proceedings including making a statement and attending court to give evidence:
"I believe that X has the capacity to participate in court proceedings. However, it should be noted that various professionals at different times have commented on the difficulty of interviewing her in relation to the alleged abuse. My own experience of exploring these issues with her is that many of my questions were met with silence; she was clearly very uncomfortable and distressed and seemed unable to respond. When I asked her about appearing in court she responded 'I can't'."
(d) X's understanding of the measures which might be put in place to protect her as a vulnerable witness:
"When asked about her understanding of these, X told me that she understood that she could provide evidence via video link. However, she said that this would be a traumatic prospect for her as she understood that the alleged abuser would be able to see her face and she could not cope with this. As above, I also think that her perception that processes so far have, to some extent, let her down means that she does not feel confident in any of the reassurances provided."
There is also a report, also dated January 2012, from her consultant physician, Dr MG, stating that X is under his care at a hospital, with a diagnosis of steroid dependent difficult asthma and steroid induced myopathy. She has "ongoing severe respiratory symptoms". Increasing stress would undoubtedly be of no benefit to her ongoing symptoms and would not help her rehabilitation to occur more quickly.
By the time the matter came to be heard by Peter Jackson J on 20 January 2012, the state of knowledge of the various actors was as follows. The local authority not only knew the identity of X but also had a full record of her allegations. M also knew the identity of X, because in July 2010 the local authority had inadvertently disclosed to her unredacted material which had enabled her to work out who X was. M states that she spoke to X as a result and has come to believe that her allegations are true. But she does not know the details. F has always denied that he has sexually abused anyone and has alleged that M is behind the allegations in order to prevent his having a relationship with his daughter. He states that he does not know who X is. The Children's Guardian inadvertently came to know her identity in September 2011 because her name was erroneously left in a document disclosed by the local authority. But the Guardian knows nothing more of the confidential material. The Judge did, however, have all the material as he had ordered in September 2011 that...
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