R v G (disclosure of fact-finding judgment to SSHD)
| Jurisdiction | England & Wales |
| Judge | MR DAVID REES QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT |
| Judgment Date | 31 January 2022 |
| Court | Family Division |
Children arrangements – Disclosure – Fact-finding judgment – Potential for disclosure to immigration authorities – Allegation of sexual abuse part of successful asylum claim – Sexual abuse allegation found to be fabricated in child arrangements proceedings – Whether relevant matter for Secretary of State – Whether public interest factors outweighed welfare considerations.
The parents and child were citizens of a foreign country, Q. In February 2016, the mother travelled to the UK with the child, claiming asylum. Her asylum application included the following allegations: the father had been violent towards her (both physically and sexually); that on the morning of 24 January 2016 the mother had witnessed the father sexually abuse the child; and that there was a substantial risk that the father and/or his family and associates would kill the mother if she returned.
The Secretary of State for the Home Department (SSHD) accepted the mother’s claims of domestic and sexual abuse by the father but refused her application for asylum, deciding that she could relocate internally in her home country to a place where she would not face a real risk of harm. However, the mother successfully appealed to the first-tier tribunal, which considered that her claims, including her claims that she could not safely relocate, were credible and that she had established a well-founded fear of persecution. In October 2017, the mother was granted refugee status and the child was granted leave to remain with the mother. The child was granted refugee status in his own right on 12 May 2020, on the basis of the same material provided in support of the mother’s claim.
In 2018, the father sought the child’s summary return to Q under the Hague Convention but later withdrew this application and instead, in 2019, applied for a child arrangements order. He eventually sought disclosure of the documents from the asylum process into these Children Act 1989 proceedings. The SSHD intervened on the issue of disclosure and, like the mother, opposed it. A High Court judge permitted the disclosure of some, but not all, of the material sought by the father; this decision was upheld on appeal.
The fact-finding hearing took place in November 2020 and in January 2021 the judge handed down judgment, finding that a number of the mother’s allegations against the father had been made out, and that the father had been a controlling presence who had subjected the mother to domestic abuse and physical violence throughout the marriage. He specifically found that the mother had undergone an illegal termination of a pregnancy due to her fears about the father’s abusive and violent behaviour. The judge did not find that the mother’s allegations of sexual violence and rape had been made out, but made it clear that this did not amount to a finding that these allegations were necessarily untrue. However, the judge actively rejected some parts of the mother’s evidence, upholding the father’s cross-allegation that the mother had fabricated the allegation that the father had sexually abused the child.
The father broadly accepted the judge’s findings in relation to domestic violence, although he continued to dispute the details of some specific incidents. The mother did not accept the judge’s finding that the allegation of sexual abuse had been fabricated.
In May 2021 the father issued an application seeking permission to disclose the fact-finding judgment to the SSHD, so that the SSHD could consider taking further action. This application was opposed by the mother. An order of 19 May 2021 recorded that the father fully supported the child living in the mother’s primary care in the UK and was essentially seeking a full and proper relationship with the child, including spending time with the child in both the UK and Q. However, the guardian’s report in September 2021 described the father as saying that if the outcome of his disclosure application was that the child’s asylum status and security in England was undermined ‘then so be it’. On 30 September 2021 the judge made a consent order providing for the child, now 10 years old, to live with the mother.
Held, granting the father permission to disclose certain documents to the Secretary of State for the Home Department (SSHD)—
(1) Although many issues were common to both sets of proceedings, it was important to recognise that the material before this court and the relevant legal framework differed from that which had applied to the asylum application. In the Children Act 1989 proceedings the mother had been required to prove her allegations against the father on the civil standard of proof – the balance of probabilities – whereas within the immigration proceedings the mother had been required to demonstrate a reasonable degree of likelihood that she was entitled to international protection as a refugee (a lower standard of proof). Also, in the course of the fact-finding hearing this court had received different and additional evidence to that adduced in the immigration proceedings, receiving written and oral evidence from the father and other family members, including four of the mother’s siblings. The evidence had also been tested in different ways. In the Children Act 1989 proceedings, the mother had been cross-examined by counsel for the father and by counsel for the child, including by reference to material that had not been before the first-tier tribunal. There had also been issues pertinent to the asylum application (for example, the father’s alleged connections with the police in Q) which had not been relevant in the context of the Children Act 1989 application (see [17], [18], below).
(2) The issue of the disclosure of the fact-finding judgment to the SSHD under Family Procedure Rules 2010, r 12.73 involved an exercise of discretion which, applying Re M (care proceedings: disclosure)[2019] EWCA Civ 1364, must be undertaken by reference to the factors identified in Re C a minor (care proceedings disclosure) sub nom Re EC (disclosure of material) [1997] Fam 76, [1996] 3 FCR 521 (see [22]–[24], [54], below).
(3) Given the different factual matrix that applied to the two sets of proceedings and the different standards of proof that applied, the court fully recognised that it was possible for different outcomes to co-exist. However, that did not mean that the court’s conclusions in the Children Act 1989 proceedings were not relevant to the immigration proceedings. Having found not merely that the mother had failed to establish the burden of proof in relation to the allegation of sexual abuse to the civil standard but that, on the balance of probabilities, the mother had fabricated the allegation of sexual abuse, the difference in outcomes between the two sets of proceedings could not simply be explained by reference to the difference in the applicable standards of proof. Applying the lower test, the first-tier tribunal appeared to have been satisfied that there was a reasonable degree of likelihood that the incident of sexual abuse alleged by the mother had occurred. Applying the higher test, this court had been satisfied on the balance of probabilities that the abuse had not happened and that the mother’s account of that incident had been fabricated. Those two outcomes could not be regarded as consistent with each other, although they might be explicable by the difference in the evidence (see [57]–[59], below).
(4) The fact-finding judgment was not wholly at odds with the conclusions of the immigration authorities. Nonetheless, although the court did not know the precise role played by the sexual abuse allegation in the determination by the first-tier tribunal, given that allegation’s gravity it must have played a material part. Moreover, the tribunal had expressly concluded that the mother was a credible witness in all respects, and this court’s conclusion that parts of the mother’s evidence were untrue was plainly at odds with that conclusion. In those circumstances the court was satisfied that that its fact-finding judgment and, specifically, the findings regarding the mother’s credibility and the allegation of sexual abuse, were relevant matters which, were the court to permit disclosure, the SSHD would be required to consider (see [60], [61], below).
(5) Looking at the specific factors identified in Re C as relevant to the decision to permit disclosure, three carried particular weight in this case: (1) the child’s welfare and interests; (2) the public interests in the administration of justice; and (3) the desirability of co-operation between various agencies concerned with the welfare of children. The welfare of children generally would not be affected by this decision, on the facts. Nor would a decision to disclose the fact-finding judgment be likely to impact upon the general importance of encouraging frankness in children’s cases. Further, the maintenance of confidentiality in children’s cases did not have its usual importance in this case – the SSHD was already aware of the material details of the issues in the case; the main issue she was currently unaware of was the finding that the mother had fabricated her allegation of sexual abuse (see [62], below).
(6) A decision to disclose the fact-finding judgment might give rise to a period of uncertainty regarding the status of the child and mother within this jurisdiction, which might lead to further worry or concern for this child, who was already worried about a return to Q. However, disclosure of the judgment to the SSHD did not of itself mean that the child would be returned to Q, or even that such a step was likely or imminent. Even if the SSHD took steps to revoke the grants of asylum, there were a significant number of legal hurdles that would stand in the way of removal from the UK. The child’s present status as a refugee meant that the court could not make an order for him to have contact with the father and his wider family (both maternal and paternal) in...
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