Supreme Ct orders disclosure of identity of accuser in contact proceedings case

The Supreme Court has ordered a council to disclose to parties in contact proceedings the identity of a woman who accused a father of sexual abuse, in a case where the court had to “reconcile the irreconcileable”.

The case of In the matter of A (A Child) [2012] UKSC 60 centred on proceedings concerning a child, A, whose parents separated when she was a baby.

The child lives with her mother, M, and the father, F, had unsupervised contact.

A woman, X, made allegations of sexual abuse against F which she said occurred when she was a child.

When the local authority, ZCC, became aware of the allegations, it approached the mother and advised her to take steps to protect A from abuse by the father.

The council did not tell M who made the allegations, nor what was alleged, but said it considered them to be credible.

The mother then applied to vary the contact arrangements so as to restrict F’s contact with A to supervised contact. The father denied that he had sexually abused anyone.

The court directed that ZCC should disclose the information in its possession in relation to X’s allegations against A to M and F.

The council applied to the court for the order to be discharged on the grounds of the severe distress and emotional harm which the removal of her anonymity would cause X to suffer.

The psychiatrist treating X provided evidence to the court indicating that:

• her physical health had deteriorated to the point of being life threatening as result of stress;
• disclosure of the records would be potentially detrimental to her health; and
• being required to participate in the contact proceedings would be immensely stressful for her, even with measures taken to protect her as a vulnerable witness.

In the High Court Mr Justice Peter Jackson ruled that the records should not be disclosed. The judge concluded that disclosure was unlikely to achieve anything valuable and it would be oppressive and wrong to compel X to give evidence at a subsequent hearing.

This was overturned in the Court of Appeal on the basis that the question of whether X should give evidence would arise for decision at a later stage.

Before the Supreme Court heard the case, the council inadvertently disclosed the identity of X to the mother and the guardian acting on A’s behalf.

The Supreme Court unanimously dismissed the appeal, with Lady Hale, who gave the only judgment, saying: “We are asked in this case to reconcile the irreconcileable.”

Counsel for X submitted that the impact of disclosure would violate her right not to be subjected to inhuman or degrading treatment protected by article 3 of the European Convention on Human Rights, or alternatively interfere with her right to a private life under article 8.

On the other hand, it was argued that A’s right to be protected from abuse also potentially engaged article 3, and restricting contact interfered with the right to family life under article 8 on the part of A, M and F.  

It was also submitted that all three of the parties to the contact proceedings – A, M and F – were entitled to the right to a fair trial of those proceedings protected by article 6. Both article 3 and article 6 rights are absolute.  

The local authority claimed public interest immunity for its records relating to X and her allegations.

Lady Hale said ZCC’s records enjoyed public interest immunity from disclosure because of the public interest in encouraging members of the public to come forward to help the authorities to protect children, whether witnesses or the victims themselves.

However, she pointed out that the immunity was not absolute, and had to be balanced against the public interest in a fair trial.

The judge said that in children cases, the court could exceptionally take into account material which had not been disclosed to the parties, if disclosure would harm the child.

However, Lady Hale added: “If [these principles] were to be applied in this case, it is clear that there is little or no risk of harm to A if the material is disclosed. The risk is if the material is not disclosed and a wrong decision is reached as a result.”

The judge said the common law principles had been affected by the Human Rights Act 1998 and the court now had to take account of the interests of third parties whose rights under the ECHR might be violated by disclosure.

Lady Hale said this was not a case where X’s confidence could be preserved without harming others.

Her allegations raised at the very least the serious possibility of a risk of harm to A from her father. “Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which F may present to her or can resume her normal relationship with him,” the judge said.

“That simply cannot be done without disclosing to the parents and to the Children’s Guardian the identity of X and the detail and history of the allegations which she has made. The mother can have no basis for seeking to vary the arrangements for A to have contact with her father unless this is done.”

Lady Hale added that if this were an ordinary public interest immunity claim, there would be no question where the balance of public interest would lie.

The judge said the impact on X meant that the state’s negative duty to avoid subjecting her to inhuman treatment in breach of article 3 had to be taken into account.

However, the context in which this treatment takes place affects the severity of its impact.

“The context here is not only that the state is acting in support of some important public interests, it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure would cause her.”

Lady Hale therefore concluded that disclosure alone of the records would not violate X’s rights under article 3.

The judge said the court still had to balance X’s rights to a respect for her private life with the interests in disclosure.

Lady Hale rejected the suggestion that the courts might adopt a form of closed material procedure, restricting disclosure of the material to a judge and special advocate for the parties.

“It is arguable that a greater latitude may be allowed in children cases were the child’s welfare is the court’s paramount concern,” the judge said. “But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful.”

Lady Hale added: “In a case such as this, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place.

“From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case.”

Lady Hale said the only possible conclusion was that the family life and fair trial rights of A, M and F were a sufficient justification for the interference with the privacy rights of X.

However, the judge said it did not follow that X would have to give evidence in person in these proceedings. As the Court of Appeal said, disclosure might be enough to resolve matters either way.

Lady Hale suggested that there were a number of options where disclosure was not enough. If a hearing was required and X was called to give evidence, up to date medical evidence would be obtained for her and measures to protect her from courtroom confrontation could be considered. “Family proceedings have long been more flexible than other proceedings in this respect,” the judge said.

If X was too unwell to cope with oral questioning, the court might have to do its best with the record of what she has said previously, perhaps supplemented by written questions put to her in circumstances approved by her doctor.

Lady Hale said: “The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.”