Re B (Disclosure to other parties)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Date | 2001 |
| Year | 2001 |
| Court | Family Division |
Disclosure – Documents filed in Children Act proceedings – Father seeking disclosure of documents – Whether non-disclosure to father amounting to breach of right to fair trial – Whether disclosure denying mother and children right to privacy and family life – Whether documents should be disclosed – Human Rights Act 1998, Sch 1, Pt I, arts 6, 8.
Human rights – Fair trial – Civil right – Adversarial proceedings – Equality of arms – Privacy – Family life – Balancing father’s right to fair trial with rights of mother and children to family and private life – Whether documents in care proceedings relating to mother and children should be disclosed to father – Human Rights Act 1998, Sch 1, Pt I, arts 6, 8.
Care proceedings were commenced in relation to four children who were in the care of a local authority under interim care orders: K, a girl born in 1988, S, a girl born in 1991, H a girl born in 1995 and B, a boy born in 1997. The father of K and S was G, who had previously been married to the mother. H’s father was R; he had never been married to the mother. W was B’s father and was married to the mother. Prior to being taken into care, all four children had been living with the mother and W. A dispute arose between the parties as to the documents that should be shown to R in the course of, and for the purposes of, his participation in care proceedings. R contended that, as he was a party to the proceedings, he was entitled to see all the documents that had been filed. The mother, supported by W, sought to limit quite substantially the ambit of disclosure to R. She claimed that R could not sensibly make any application for a residence order in relation to H since, inter alia, she alleged there was an extensive and largely acknowledged history of serious domestic violence inflicted by R on the mother, H, and S. The children’s guardian ad litem suggested that a limited number of documents should not be disclosed to R, including: records and reports of sessions of K and S by the police and a consultant psychologist; all care plans in relation to K, S and B; certain witness statements filed in the care proceedings by the mother, W and G; and substantial parts of social workers’ and health visitor’s evidence in relation to the mother, W and the children. The dispute raised questions in respect of the rights guaranteed by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998), namely the right to a fair trial and the rights to privacy and a family life. Furthermore, the matter required the question of confidentiality of documents in family proceedings to be re-visited in the light of the Human Rights Act 1998.
Held – (1) Article 6, unlike art 8 of the Convention, was not subject to any words of limitation. Primacy had to be given to the right to a fair trial and that right did not require, or permit, a balance to be struck between the rights it guaranteed and other considerations, such as the public interest. Article 6 guaranteed an absolute right to a fair trial and although that right could not be compromised by reference to art 8, it did not necessarily result in an absolute and unqualified right to see all the documents in a case. Furthermore, since the Human Rights Act 1998 had come into force there was no warrant for saying that the only interests capable of denying a litigant access to the documents in a proper case were the interests of the children involved in the litigation. If the interests of a child were capable in a proper case of having that effect, then in principle so should the interests of anyone else who was involved and who could demonstrate that their art 8 rights were sufficiently engaged; Re D (minors) (adoption reports: confidentiality) [1996] 1 FCR 205 considered
(2) R’s right to a fair trial meant that he (like all other parties) was entitled to be involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests. He was prima facie entitled to disclosure of all the materials which might be taken into account by the court when reaching a decision adverse to him. However, the decision-making process, although it had to be fair to R and all the other parties, had also to be such as to afford due respect to the interests of the children, the other parties and the witnesses safeguarded by art 8. A limited qualification of R’s right to see the documents was acceptable if reasonably directed towards a clear and proper objective, which in the instant case was the protection of the art 8 rights of the children, the mother and W, and if it represented no greater a qualification of R’s rights than the situation called for. A balance had to be struck in a way which was fair and which achieved a reasonable relationship of proportionality between the means employed and the aim which was sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved. Article 8 guaranteed only respect for and not inviolability of private and family life; any restriction of a party’s right to see the documents in a case had to be limited to what the situation imperatively demanded. Non-disclosure could only be justified when the case for doing so was compelling and strictly necessary; Re H (a child) (adoption: disclosure) [2001] 1 FCR 726, Douglas v Hello! Ltd[2002] 1 FCR 289 applied.
(3) Having regard to the nature and seriousness of the various interests at stake, a sufficiently compelling case had not been established to justify limiting R’s access to all the documents sought by the mother. R could only have been deprived of that access if it had been necessary to do so in order to protect either the children, the mother or W, from a real possibility of significant harm. That necessity had not been established and, in any event, R’s right to a fair trial would have tipped the balance in his favour. However, there was no need for him to see the very personal accounts contained in the police interviews of K and S on the basis that it would involve a wholly disproportionate interference with the rights of K and S to privacy, confidentiality and respect for private and
family life. Furthermore, it was inappropriate at that stage for R to see documents in relation to the work of the consultant psychiatrist, consultant psychologist and therapist with the mother, W, K and S. Knowledge of R having access to that material would be deeply distressing for those parties and would be wholly disproportionate to any legitimate forensic purpose that would be served by allowing R to see them. Depriving R from seeing those documents would not deny him a fair trial, but allowing him to see them would breach the art 8 rights, in particular of K and S.
Cases referred to in judgmentA Health Authority v X[2001] 2 FCR 634.
Andersson v Sweden (1992) 14 EHRR 615, ECt HR.
Ashingdane v UK (1985) 7 EHRR 528, [1985] ECHR 8225/78, ECt HR.
Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97, [2001] 2 WLR 817, PC.
C (disclosure of information), Re[1996] 3 FCR 765, [1996] 1 FLR 797.
Campbell and Fell v UK (1984) 7 EHRR 165, ECt HR.
Ciliz v Netherlands [2000] 2 FLR 469, ECt HR.
Clibbery v Allan[2001] 2 FCR 577, [2001] 2 FLR 819; affd[2002] EWCA Civ 45, [2002] 1 FCR 385, [2002] 1 All ER 865.
D (minors) (adoption reports: confidentiality), Re[1996] 1 FCR 205, [1996] AC 593, [1995] 4 All ER 385, [1995] 3 WLR 483, [1995] 2 FLR 687, HL.
Dombo Beheer BV v Netherlands (1993) 18 EHRR 213, ECt HR.
Doorson v Netherlands (1996) 22 EHRR 330, [1996] ECHR 20524/92, ECt HR.
Douglas v Hello! Ltd[2002] 1 FCR 289, [2001] 2 All ER 289, [2001] 2 WLR 992, [2001] 1 FLR 982, CA.
Elsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.
Fitt v UK (2000) 30 EHRR 480, [2000] ECHR 29777/96, ECt HR.
Gaskin v UK (1989) 12 EHRR 36, [1989] ECHR 10454/83, ECt HR.
Glaser v UK[2000] 3 FCR 193, [2001] 1 FLR 153, ECt HR.
Golder v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.
H (a child) (adoption: disclosure), Re[2001] 1 FCR 726, [2001] 1 FLR 646.
Hendriks v Netherlands (1982) 5 EHRR 223, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, (1994) 19 EHRR 139, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, [1996] EHRC 17383/90, ECt HR.
K and T v Finland[2001] 2 FCR 673, (2000) 31 EHRR 484, ECt HR.
Kelly v BBC[2000] 3 FCR 509, [2001] Fam 59, [2001] 1 All ER 323, [2001] 2 WLR 253.
L (a child) (contact: domestic violence), Re; Re V (a child) (contact: domestic violence); Re M (a child) (contact: domestic violence); Re H (a child) (contact: domestic violence) [2000] 2 FCR 404, [2000] 4 All ER 609, [2001] 2 WLR 339, [2000] 2 FLR 334, CA.
L v Finland[2000] 3 FCR 219, [2000] 2 FLR 118, ECt HR.
L v UK[2000] 2 FCR 145, [2000] 2 FLR 322, ECt HR.
M (disclosure), Re[1999] 1 FCR 492, [1998] 2 FLR 1028, CA.
McGinley and Egan v UK (1998) 4 BHRC 421, ECt HR.
McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.
Montgomery v HM Advocate [2001] 2 WLR 779, PC.
Murjani (a bankrupt), Re [1996] 1 All ER 65, [1996] 1 WLR 1498.
Official Solicitor to the Supreme Court v K [1965] AC 201, [1963] 3 All ER 191, [1963] 3 WLR 408, HL.
Olsson v Sweden (No 1) (1988) 11 EHRR 259, [1988] ECHR 10465/83, ECt HR.
Olsson v Sweden (No 2) (1992) 17 EHRR 134, [1992] ECHR 13441/87, ECt HR.
Pamplin v Express Newspapers Ltd [1985] 2 All ER 185, [1985] 1 WLR 689.
Ruiz-Mateos v Spain (1993) 16 EHRR 505, [1993] ECHR 12952/87, ECt HR.
S (a child) (ex parte orders), Re[2000] 3 FCR 706, [2001] 1 All ER 362, [2001] 1 WLR 211.
Scott v UK[2000] 2 FCR 560, [2000] 1 FLR 958, ECt HR.
Scozzari v Italy[2000] 3 FCR 430, [2000] 2 FLR 771, ECt HR.
TP and KM v UK[2001] 2 FCR 289, ECt HR.
W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR.
WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589, [1983] 1 WLR 721, CA.
X (disclosure of information...
To continue reading
Request your trial
-
Chief Constable v YK and Others
...suggest that the special advocate closed procedure was not available in a case under the Act. (FMCPA) 62 I was also referred to Re B (Disclosure to other parties) [2001] 2 FLR 1017 ( Re B), in which Munby J (as he then was) enunciated three propositions of law with which I find myself in re......
- Sheffield City Council v M and Others
-
KK v Leeds City Council
...to withhold the material from the Applicant. Again, he concluded that it was. As Munby J said in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 (‘ Re B’) at §89: “Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order sho......
-
GD and BD (Children, by their Children's Guardian) and Another v FD and Another West Yorkshire Police Ian Shiels (Interveners)
...court, on application by either the local authority or the police, has granted permission for non-disclosure (see for instance Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, and Durham County Council v Dunn [2012] EWCA Civ 1654, [2013] LGR 315); ix) It is recognised that there may b......
-
Table of Cases
...CA 67 B (Care Proceedings: Appeal), Re. See B (A Child) (Care Proceedings: Threshold Criteria), Re B (Disclosure to Other Parties), Re [2001] 2 FLR 1017, [2002] 2 FCR 32, [2001] Fam Law 798, FD 47, 109, 268 B (Natural Parent), Re [2001] UKHL 70, [2002] 1 WLR 258, [2002] 1 All ER 641, [2002]......
-
Placement for Adoption and Placement Orders
...should be made relying on any infringement of Convention rights, for example Art 8 rights (see Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 and Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476). Proof of the child’s identity 4.96 The inclusion of the chi......
-
The Disclosure of Information
...the right to a fair trial under Art 6 ( Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828; Re B (Disclosure to Other Parties) [2001] 2 FLR 1017). Proceedings heard in private 20.47 Adoption proceedings are held in private. Any information related to the proceedings may only be com......
-
Children's rights: a european perspective
...this provision in the McMichael case also. For application of this law in the United Kingdom see Re B. (Disclosure to Other Parties) [2001] 2 F.L.R. 1017 where Munby J. held that the party was entitled to the disclosure of all the materials that may be taken into account by the court when r......