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You can’t hurry issues of disclosure of anonymous referrers

 

Tenuous title, based on nothing more than it being a Supreme Court decision – and it didn’t fit my “Chicken Supreme” headline, which will be saved for a decision which deserves it. Big important case though.

I’d previously blogged about the Court of Appeal decision in this case, but now the Supreme Court have decided it once and for all.  In RE A (a Child) 2012    (which is weird, because the appeal case was re j, and we all anticipated this being re x)

The judgment is here

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0193_Judgment.pdf

 

You may recall, that the case involved an allegation of  a sexual nature being made against a father by a person who wished to remain anonymous. The father wanted to know the details of the referrer, with a view to establishing  a case of why this person might make ghastly and untrue allegations against him; and the Court of  Appeal had to grapple with the twin concepts of article 6 right to a fair trial, and the broad public interest immunity in people being able to make referrals about child abuse in an anonymous capacity, to remove the risk that proper referrals might not be made if the person wishing to make one was fearful of reprisals, both in and out of Court.

I have put that in a very clumsy manner, let’s see how genuinely clever and articulate people do it

1.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.

Much better.

 

The issues in this case of course go much broader and deeper than the case itself, and cut to the heart of how the Court is to tackle allegations which on the face of it are serious and grave but where the primary evidence is from someone who wishes to remain anonymous and does not want to come before the Court and have the primary evidence tested by cross-examination.

From the ‘public interest in anonymity’ standpoint, a better case could not have come before the Court – the allegations were not to be determined at a fact-finding, the identity of the referrer was known to the Local Authority who were able to notify her and she was able to secure intervenor status and undertake psychological assessments showing how devastating and harmful revealing her identity might be. It must be at the high watermark of cases where the concern about disclosure is significant and real, rather than theoretical and about the principle in a wider sense.

The Supreme Court helpfully set out the positions of the respective parties

13.The positions of the parties are as follows:
(i) Sarah Morgan QC, on behalf of X, resists disclosure on the primary ground that this will violate her right not to be subjected to inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights. Alternatively, the balance between her right to respect for her private life and the rights of the other parties should be struck by the court adopting some form of closed material procedure which would enable the allegations to be tested by a special advocate appointed to protect the parents’ interests but without disclosure to the father.
(ii) Paul Storey QC, on behalf of the Children’s Guardian, supports disclosure in the interests of A. A’s right to respect for her private and family life is engaged, as potentially is her article 3 right to protection from abuse: see Z v United Kingdom (2001) 34 EHRR 97. The allegations cannot be ignored but they cannot be taken into account unless they can be properly investigated.
(iii) The mother is in the same position, but with the additional feature that she knows who X is and believes the principal thrust of her allegations to be true. She understands that it will not be possible to rely upon these unless they can be properly investigated but she will have great difficulty in agreeing that the father should resume unsupervised contact with A unless they are.
(iv) The father also supports disclosure. He might instead have relied on the mother’s inability to pursue the allegations without disclosure but he wishes to have them resolved. Not having seen the history of how and when X’s allegations were made, he does not accept the judge’s conclusion that they were not prompted by the mother.
(v) The local authority now adopt a completely neutral stance as to disclosure. Roger McCarthy QC on their behalf accepts that if the material is not disclosed in these proceedings it would not be possible for the local authority to bring care proceedings to remove A from her mother unless the material could be disclosed in those proceedings. In other words, they accept that they cannot have it both ways and put all the burden of protecting A upon the mother without giving her the material with which to do so.

 

The law is then set out

 

14. It is convenient first to look at the principles governing the issue at common law, before considering how these may have been affected by the implementation of the Human Rights Act 1998.

15. The local authority claim public interest immunity for their records relating to X and her allegations. They are doing so because of the public interest in maintaining the confidentiality of information given to the authorities responsible for protecting children from abuse. That this is a class of information to which public interest immunity attaches has been established since the decision of the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171. That case accorded to people who informed the authorities of allegations of child abuse the same protection as informants to the police and the gaming authorities. It is not the fact that the information is communicated in confidence which attracts the immunity, but the public interest in encouraging members of the public to come forward to help the authorities to protect children. That this may also protect an untruthful or malicious informant is the necessary price to be paid. Although D v National Society for the Prevention of Cruelty to Children was concerned with a neighbour who claimed to have witnessed the alleged abuse, rather than a victim, I can see no reason why the same rationale should not also apply to the victims of alleged abuse.

16.That is not, of course, the whole story. The immunity is only the starting point, for without it there is no question that all documentation relevant to the proceedings must be disclosed. Public interest immunity is not absolute. The public interest in maintaining confidentiality must be balanced against the public interest in a fair trial, according to principles which have developed since the landmark case of Conway v Rimmer [1968] AC 910 required the court to strike that balance.

17.If the public interest against disclosure prevails, the decision-maker, whether judge or jury, is not entitled to take the information into account in deciding the result of the litigation. There is no hard and fast rule as to whether the same judge can continue to hear the case. It is well-established that a judge may do so in a criminal case, but then the jury and not the judge are the finders of fact. It may also be possible to do so in a civil case: see Berg v IML London Ltd [2002] 1 WLR 3271. The well-established test of apparent bias will apply: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357.

18.Are cases about the future care and upbringing of children any different? The whole purpose of such cases is to protect and promote the welfare of any child or children involved. So there are circumstances in which it is possible for the decision-maker to take into account material which has not been disclosed to the parties. As Lord Devlin put it in In re K (Infants) [1965] AC 201, 238, “a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed”. He went on, at p 240, to approve the words of Ungoed Thomas J at first instance [1963] Ch 381, at p 387:
“However, where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose. . . . In general publicity is vital to the administration of justice. Disclosure to the parties not only enables them to present their case fully but it provides in some degree the advantages of publicity; and it further ensures that the court has the assistance of those parties in arriving at the right decision. So when full disclosure is not made, it should be limited only to the extent necessary to achieve the object of the jurisdiction and no further.”
Thus, while there was no absolute right for the mother to see the report made by the Official Solicitor as guardian ad litem for a ward of court, the discretion to refuse it was to be exercised “occasionally and with great caution”. Lord Evershed had earlier set the bar extremely high when he said (at p 219) that “a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant must otherwise ensue” (emphasis supplied).

19. In In re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593, referred to by the Court of Appeal in this case as the “starting point”, Lord Mustill, at p 611, did not accept that Lord Evershed intended those words to be read literally as a standard applicable in every wardship case, let alone in adoption cases which were governed by the Adoption Rules. These then provided that all reports were confidential, but that an individual could inspect any part of such report which referred to him, subject to the court’s power to direct otherwise. In Children Act proceedings, Lord Mustill preferred the broader principle enunciated by Glidewell LJ in In re B (A Minor)(Disclosure of Evidence) [1993] Fam 142 at p 155:
“Before ordering that any such evidence be not disclosed to another party, the court will have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it.”

20. Thus Lord Mustill concluded, at p 614, that “the presumption in favour of disclosure is strong indeed, but not so strong that it can be withheld only if the judge is satisfied that real harm to the child must otherwise ensue”. He went on, at p 615, to enunciate the principles which have been recited ever since:
(i) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.
(ii) When deciding whether to direct that a party referred to in a confidential report in adoption proceedings should not be able to inspect the part which refers to him or her, the court should first consider whether disclosure of the material “would involve a real possibility of significant harm to the child”.
(iii) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.
(iv) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

21.It will thus be seen that these principles are designed to protect the welfare of the child who is the subject of the proceedings, to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child. If they 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.

22. The principles enunciated by Lord Mustill do not address whether it might be possible in Children Act proceedings to withhold information which is to be taken into account by the court from any of the parties on the ground that disclosure might cause harm to someone other than the subject child. In In re B, above, the proceedings were about a father’s contact with his 12-year-old son. His 15-year-old half-sister had made serious allegations of sexual abuse against her stepfather which the mother wanted the court to take into account without
disclosing them to the father. As Glidewell LJ pointed out, at p 156, the order was sought, mainly if not entirely, for the protection of the half-sister and it was the son’s welfare which was the court’s paramount consideration. Even if it were suggested that in some way the son might be harmed by disclosure (though the suggestion was rather that having to keep his sister’s allegations secret would be harmful to him), that possibility had to be weighed against the grave injustice which would result from non-disclosure. So even in a case where the third party was a child, it was the interests of the subject child which might have justified non-disclosure.

23.We therefore have to look outside those authorities for the source of any power to withhold such information in the interests of a third party. As the common law stands at present, in the absence of a statutory power to do so, the choice is between the case going ahead without the court taking account of this material at all and disclosing it to the parties.

 

The Court went on to consider the human rights implications, and chief amonst these was whether there were article 3 and article 8 rights attaching to the referrer who wished to be anonymous, to be weighed against the article 6 rights of the parents facing allegations about which they did not have full information

24.To what extent, if at all, are these principles affected by the Human Rights Act 1998? In A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, the Court of Appeal accepted that the principles of non-disclosure might now have to be extended to other people whose Convention rights might be violated by disclosure.

25.It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

26.However, Miss Morgan on behalf of X has relied principally (as did the mother in A Local Authority v A) upon her article 3 right not to be subjected to inhuman or degrading treatment. Requiring X to give evidence in person would, she argues, amount to treatment for this purpose, but so too would the act of disclosure because of the effect that it would have upon X. Dr W was specifically asked to distinguish between the effect of disclosure and the effect of giving evidence (see para 6(vi) above). She replied that disclosure alone would potentially be detrimental to her health. She pointed out that her condition had deteriorated considerably recently, to such an extent as to be life-threatening. Disclosure would
inevitably subject her to further stress. There was therefore a significant risk that exposure to further psychological stress would put her at risk of further episodes of illness. That, argues Miss Morgan, is sufficient to bring the effects of the treatment up to the high threshold of severity required by article 3. X has therefore an absolute right not to be subjected to it.

27.The other parties to these proceedings question whether mere disclosure can amount to treatment within the meaning of article 3. They also support the conclusion of the Court of Appeal that the effects of disclosure alone would not reach the minimum level of severity required to violate article 3. Indeed, Peter Jackson J, while concluding that requiring X to give evidence would probably reach that high threshold, did not hold that disclosure alone would do so. He did not say that it would not, but it is clear, not least from the questions he asked of Dr W, that he was fully alive to the distinction between the effects of disclosure and the effects of giving evidence.

28.If her argument on article 3 is not accepted, Miss Morgan’s secondary case on behalf of X is that the invasion of her private life which would result from disclosure of this material in these proceedings is so grave that it would be disproportionate to disclose it. The court should therefore contemplate some form of closed material procedure, which would enable the material to be put before the court and tested, without disclosing either her identity or the details to the other parties.

 

That suggestion is broadly what had happened in the original High Court case, the Judge had seen the information and determined that it was not something on which a finding of fact hearing was required, and put it out of his mind – one major issue for the Court of Appeal was whether the Judge who had undertaken that process and set the information out of his mind could genuinely do so and was in a position to conduct the remainder of the case without the parties having the impression that evidence not seen by them might be influencing him in some way.

29.If we were dealing with the common law principles alone, the answer would be clear. There is an important public interest in preserving the confidence of people who come forward with allegations of child abuse. The system depends upon the public as its eyes and ears. The social workers cannot be everywhere. The public should be encouraged to take an interest in the welfare of the children in their neighbourhoods. It is part of responsible citizenship to do so. And that includes victims of historic child abuse who have information about the risks to which other children may now be exposed.

30.But many of these informants will not be required to give evidence in order to prove a case, whether in criminal or care proceedings, against the perpetrators of any abuse. Their information will simply trigger an investigation from which other evidence will emerge. Their confidence can be preserved without harming others. In this case, however, that is simply not possible. We do not know whether A is at risk of harm from her father. But we do know of allegations, which some professionals think credible and which would, at the very least, raise the serious
possibility of such a risk. Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which her father may present to her or can resume her normal relationship with him. 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. If this were an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie.

31.It is, of course, possible that the harm done to an informant by disclosing her identity and the details of her allegations may be so severe as to amount to inhuman or degrading treatment within the meaning of article 3. The evidence is that X suffers from a physical illness which is at times life-threatening and that her condition deteriorates in response to stress. The father does himself no credit by belittling this. There was some discussion about whether we were here concerned with the duty of the state to take positive steps to protect her from harm (under the principles explained in Osman v United Kingdom (1998) 29 EHRR 245) or with the duty of the state to refrain from subjecting her to harm. As we are here considering the actions of the state – whether the state should disclose to others information which she gave it in confidence and, in future, whether the state should compel her to give evidence in these proceedings – I have no doubt that we are here concerned with the primary, negative, duty of the state to avoid subjecting her to inhuman treatment.

32.However, when considering what treatment is sufficiently severe to reach the high threshold required for a violation of article 3, the European Court of Human Rights has consistently said that this “depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim”: see, for example, Kudla v Poland (2000) 35 EHRR 198, para 91. The court has also stressed that it must go beyond “that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment”: para 92. Thus the legitimate objective of the state in subjecting a person to a particular form of treatment is relevant. A well-known example is medical treatment, which may well be experienced as degrading by a patient who is subjected to it against his will. However, “A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading”: Juhnke v Turkey (2008) 49 EHRR 534, para 71, citing Herczegfalvy v Austria (1992) 15 EHRR 437, para 82. Obviously, the ends do not justify the means. But the context in which 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 may cause her. I conclude therefore, in agreement with the Court of Appeal, that to disclose these records to the parties in this case will not violate her rights under article 3 of the Convention.

33.However, that may not be the end of the matter, for to order disclosure in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?

 

The Supreme Court here are agonising with the irresistable force of not wanting to cause harm to a vulnerable individual who made an allegation in an expectation of anonymity, and the immovable object of article 6 and the right to a fair trial. They have a quick look at whether they can avoid the irresistable force hitting the immovable object by digging a hole to divert the path. Will it work?

 

34.It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a “gist” of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, 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.

35.The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference
with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.

No.

And they therefore have to conclude that the immovable object of article 6 is indeed immovable, and the irresistable force of articles 3 and 8 and PII will just have to be resisted. The parents have a right to see the details of the referrer.

 

They do go on to assess how the article 3 and 8 rights might be massaged a bit, and that disclosure of the referral and identity of the referrer does not necessarily mean the referrer giving evidence, that would be a separate issue as to whether she was fit to do so.

 

The cynic in me suggests that we might well see an end to the days when the Local Authority took the names of the referrer who wished to be anonymous. That obviously sidesteps any issue of disclosure of their identity. But Local Authorities will certainly need to arrive at a proper script in the light of this case for what is told to people who ring up wanting to make a referral and who wish to be anonymous.

Because if they are told now “It’s okay, your name will be kept out of it and the family won’t know it was you” then it seems to me that there’s a prospect of satellite litigation about whether the LA properly informed them of the consequences of their action.

Additionally, it is not clear to me whether the LA are supposed to cough up the name and just waive PII (which poses some, but not insurmountable problems in PII law), or whether they place the matter before the Court and for the Court to order that the interest of justice override PII, or whether the procedure here where the referrer get intervenor status and a chance to argue article 3 and article 8 is the right one.

 

One thing is for sure, seeing the words “Anonymous referral” in a social work chronology is now not the end of the story, but the start of a whole new diverting chapter of litigation.

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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