Judge rules against Jehovah's Witnesses over care proceedings and religious duty of confidentiality

The rights of children outweigh those of confidentiality when disclosures of information about allegations of abuse are made to ministers of religion, the High Court has ruled.

Jehovah's Witnesses elders - the equivalent of ministers - failed in their challenge to an order to disclose information to a council about allegations of sexual abuse made about a father who was a member of their congregation.

Mrs Justice Lieven rejected the contention that the material was covered by a common law privilege against disclosing information obtained during confession or spiritual counselling.

In Lancashire County Council v E & F [2020] EWHC 182 (Fam) she held that the article 6 and 8 rights of the children outweighed the article 9 rights of the Jehovah’s Witnesses to respect for their religious practices.

Elders A and B had applied to set aside a witness summons issued by HHJ Singleton QC on 29 November 2019.

Lieven J said: “The application raises an important issue about the circumstances in which disclosure can be resisted on grounds of a religious duty of confidentiality, in the context of allegations of child sexual abuse.

“The facts of this case raise very great concern about the safeguarding of children within the Jehovah's Witness community.”

E is a girl aged 12 and F is a boy aged 10. In July 2019 A informed the police that their mother had, in 2016, told elders that their father had sexually abused E.

Police referred the matter to social services and the father was arrested but released on police bail, and the children were later placed with foster parents.

HHJ Singleton ordered Lancashire to file and serve statements from A and B setting out their investigation of the allegations made by E and produce various documents. They refused and HHJ Singleton issued a witness summons.

A and B argued in their challenge to this that they were under a spiritual duty not to disclose confidential religious communications.

But Lieven J rejected this. She said: “There is no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession.

“It appears that the allegation of sexual abuse came to the elders' attention because the mother reported it, not because the father confessed to the elders, or sought spiritual counselling.”

She also held that the material Lancashire sought “does not, on the evidence, amount to ‘spiritual counselling’” and that even if it did the congregation’s own policy said that where a conversation amounts to spiritual counselling but indicates that a child may be at risk of harm, it "will be conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children”.

The judge said: “There does appear to be a strong suspicion that the congregation's own published guidance…was not followed, not just by A and B, but also by more senior figures in the congregation. From a child safeguarding viewpoint this is deeply troubling, not least because the policy documents are ones which seem to be produced for public consumption but not to be effective to protect children.”

Mark Smulian