England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/07/2009

The Hon. Mr. Justice Hedley :

1. This case raises a difficult if short point about disclosure. As the point may increasingly arise in the future, I have adjourned this case into open court to give judgment in an anonymised form. Nothing may be reported which might reasonably lead to the identification of the child the subject of these proceedings. A draft was circulated, and submissions made as a result of which I have made additions and amendments, but the conclusion is not affected.
2. The point has arisen in care proceedings in respect of a child 'A' (born on 24^th November 2006) taken by the local authority against 'A''s parents. They are a married couple who are also first cousins. The key male family member is 'X' who is the father of the wife and uncle of the husband. The family originate from Pakistan, are practising Muslims and live within extended family and community. Care proceedings were taken in respect of alleged parental shortcomings the details of which are not relevant to this issue.
3. In October 2008 the mother went on holiday with 'A' to Turkey accompanied by her sister and aunt. On her return she had a conversation with the social worker in the course of which she said that she had had sexual relations with three different men whilst there. She said that on one occasion 'A' was in the room and on the other two was being looked after by the sister and her aunt who had encouraged the mother in this behaviour. The sister subsequently confirmed much of this. The court has, it should be said, not yet been asked to enquire into the truth of these matters. The mother also made a number of comments both to the social worker and the foster carer suggesting gender or sexual ambivalence. The foster carer also noted some inappropriate touching of her by the mother. A sufficient description of these matters can be found in paragraphs 17-19 (inclusive) of the social worker's statement.
4. The women were adamant that male members of the family should not be told about this as the mother's safety and even life would be in danger as would the safety of the other two women for having 'dishonoured' the family. However, the information found its way both into social work records and into a social worker's statement. It is, of course, in part evidence relevant to the mother's capacity to parent. The relationship between the parents has had its difficulties but at present the father (who, as will appear, remains ignorant of these matters) is hoping that they will be able to present as a couple, and has no reason presently to question that or the mother's desire for that. It is therefore clear that this evidence is potentially discloseable to the father.
5. In the light of this, application was made to the designated family judge for a direction not to disclose this information. Prudently he transferred this issue to the High Court for determination. When the matter first came before me, it was decided to see whether the father would consent on a temporary basis to disclosure of the information to this legal team without disclosure to him so that the matter could be properly argued on his behalf. Such consent was forthcoming. It was then decided to instruct an expert to do a risk assessment, initially on the papers, and Mrs Yasmin Hossain was jointly instructed by the parties. The mother filed a further statement explaining why such information should be withheld and how 'A' would become implicated in and affected by the women's shame.
6. When the matter came back before me, Mrs Hossain gave oral evidence and said that she could not complete the risk assessment without speaking to the parties. In particular she needed to speak to 'X' and the father (without of course disclosing the information) in order to be able to assess the magnitude of the risk and its capacity to be managed. Counsel for the father argued that there was no proper basis for withholding disclosure, that conversations with the father would be wholly artificial and the matter could and should properly be taken no further. The local authority (supported by the mother and the guardian) urged a further adjournment to enable Mrs Hossein to complete her work.
7. A key question was whether there existed any proper evidential basis from which a risk which required assessment could be identified. The statements in the evidence contain references to allegations of domestic violence and one is also referred to somewhat obliquely at the end of paragraph 19 of the social worker's statement (above). Those allegations are untried and untested. I have to say that I did not detect in the professional evidence dealing with parenting or in the course of submissions to me, that these matters featured large in the case. Certainly there is no appearance of systematic violence or any recourse to serious violence that would tend to put the court on guard. I have approached this case on the basis that there is no history of domestic violence in this family that should alert me to a propensity for serious violence. Indeed the contact notes are critical of the father for his habitual deference to the wishes and views of his wife. 'X''s former wife had committed adultery and he had responded not with violence but with divorce proceedings. However, it has to be recognised that the conduct of this mother was conspicuously flagrant and it is said that such by a daughter might provoke a different reaction in 'X' and for that the community would exert such pressure on 'X' and the father to exact condign punishment that they would be unable to resist. The same is said in relation to a disclosure of gender or sexual ambivalence.
8. The consequences of this approach are obvious and were indeed acknowledged by Mrs Hossein. In any case within the Pakistan Muslim community where sexual deviance is raised, or where outrageous sexual behaviour by a wife occurs, a real risk exists that death or really serious bodily harm is a likely consequence against which the court ought to guard and, where such behaviour is unknown to others, to sanction the withholding of such information even though it may be relevant to the issue of whether a child can or should be returned to the family. If such indeed is the position, it seems to me that the court should publicly say so; the community is entitled to know what is being said and to consider whether there is substance to it and, if so, the implications of that.
9. It is necessary then to turn next to the law relating to disclosure particularly in family proceedings where very sensitive issues can arise which may nevertheless be material to the outcome of the case. The starting point should be the speech of Lord Mustill in Re D (Minors) (ADOPTION REPORTS: CONFIDENTIALITY) [1996] AC 393. It is clear that the principles set out in that case are applicable to cases under the Children Act 1989 – see per Thorpe LJ in Re M (DISCLOSURE) [1998] 2FLR 1028 (CA). It is also clear that the principles remain applicable after the coming into force of the Human Rights Act 1998 – see per Hale LJ (as she then was) in Re X (ADOPTIION: CONFIDENTIAL PROCEDURE) [2002] 2 FLR 476. This is subject to one material enlargement noted below.
10. It is necessary to set out Lord Mustill's distillation of the law in the principles enunciated by him in Re D. I take them as set out by Thorpe LJ in Re M as they relate to a Children Act case –

(1) 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…

(2) …the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) 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.

(4) 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.

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.

The enlargement required is that Article 8 rights of adults may justify non-disclosure where the risk is of harm to them rather than the child – see per Hale LJ in Re 'X' at para 14.

11. From that it is clear that disclosure should be the norm and non-disclosure permitted only where "the case for doing so is compelling". In the context of this case it is broadly accepted that non-disclosure will only be justified if there is (or on further investigation may reasonably be expected to be) a real risk of death or at least really serious bodily harm. It has to be accepted that the alleged behaviour of the mother (if true) would be likely to elicit a fairly fervent response from even the most sanguine and tolerant spouse. Further many a partner may be angered and even outraged at expressions of gender/sexual ambivalence. Indeed in this case there really is no sufficient basis, in my judgment, for saying that this husband or 'X' would (or might reasonably be expected to) behave in the way feared. The issue is whether the mores of that community and the pressure that that would result in that community applying to this family would (or might reasonably be expected to) give rise to such a risk.
12. I should for completeness add that a male member of this family (related by marriage) is serving a custodial sentence for domestic violence. However, in fairness no-one has suggested that that presents a real risk to this mother nor that 'X' or the father in any way colluded in or approved of that behaviour. For those reasons I have not relied on that fact as a significant feature in this case. I should also add that the mother asserts a belief that the conversation with the social worker was in confidence. I have not enquired into that but since these matters affect the welfare of a child any such confidence could not in the circumstances prevail as all now accept.
13. I have reflected with great care on this. On the one hand I acknowledge the expressed fears of the mother and of other female members of the family which I accept as genuinely experienced. On the other hand I acknowledge the paucity of evidence to suggest that 'X' or this father have a propensity for actual violence. It is, of course, known that unlawful "honour-based" punishments have from time to time been inflicted in this country. However, I find myself quite unable to conclude, in the absence of evidence of a propensity for violence within the family, that the fact of belonging to this community means that in the context of this conduct of this mother a risk of the feared behaviour should be further investigated and that material, which is otherwise discloseable, should be further withheld. In my view that applies equally or greater force in connexion with issues of gender or sexual ambivalence and also applies even where these matters are considered altogether.
14. I am satisfied that this risk apart, this information is discloseable. It is relevant to the assessment of the mother's capacity to parent 'A' and to provide stability and consistency; it is therefore relevant to the father's case of presentation as a couple in circumstances where the local authority would be bound to assess him as a sole carer if he so requested. I emphasise that I have not been asked to nor have I enquired into the truth of the relevant allegation though no-one has yet sought to deny it, indeed the reverse is the case. I acknowledge that it may have consequences directly for the mother and other female family members and quite possibly indirectly for 'A' but they are not of the nature or degree that would justify non-disclosure. I accordingly direct disclosure to the father of all the evidence filed in this case but I propose to stay my order for two weeks so that all may reflect on the order and give thought as to how it should actually be implemented and how any consequences of disclosure should be handled.
15. I would like to record my gratitude to Counsel and to Mrs Hossain for the assistance that they have given me in this case. I emphasise the need to avoid identification of the child and thus of any member of 'A''s family.