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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X, Re [2012] EWCA Civ 1084 (24 July 2012)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1084.html
Cite as: [2012] EWCA Civ 1084
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ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE JACKSON)
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE HALLETT
and
LORD JUSTICE MCFARLANE
____________________
| Re X |
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WordWave International Limited
A Merrill Communications Company
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Official Shorthand Writers to the Court)
The Respondents did not appear and were not represented.
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- I am going to direct that there is an urgent and prompt transcript of what I am about to say. It is not the judgment; it is a statement describing the outcome.
- We will allow the appeal and direct that there should be disclosure of the material which describes any account X has given or retracted in relation to these matters and that that disclosure should take place to the mother, to the children's guardian and to the father. In making that order this material, like all other material in family proceedings, is confidential within the proceedings and is not to be disclosed by any party outside the people who know about it within the proceedings.
- The principal reason for coming to that conclusion is that we take the view that the mother having come to learn of X's identity in the way that she did and then understandably having the encounter with X which she did but again understandably that encounter only being almost monosyllabic or very short leaves her in the worst of all possible positions and leaves the proceedings and the father in an extremely difficult state with the mother holding the position of adhering to the essential truth, as I think she would say, of what she has been told but not knowing any of the detail of that 'truth'.
- We also take note of the fact that Jackson J on at least two occasions in the judgment indicates his view as to the essential probity or value, or lack of it, of this material and we think it is in the interests of the parties to these proceedings and the child A that the mother, the father and the guardian should be privy to whatever detail there is of what X has said.
- We therefore propose disclosure on that basis.
- I should record that we have taken full note of what is said about X's condition and the potential impact for her of disclosure. Our view is that that may not be at the extreme level that Jackson J characterised it to be, but our principal reason is the first one that I have given which is that the situation has reached the stage that it has reached and it is now untenable to hold the case in some form of tension which is irresolvable with some people knowing something but none of the parties to the proceedings knowing the full detail.
- We have rejected the alternative of dismissing the appeal and directing that the trial should be undertaken by a judge who has not read the material. That outcome, for the reasons that I have briefly described namely the mother's position and the father's position at the final hearing, seems to us to be unworkable and to store up more problems than it solves.
Lord Justice McFarlane:
Order: Appeal allowed