England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 February 2012

Mr Justice Peter Jackson:

Introduction

1. The issue is whether information held by a local authority should be disclosed to the parties in contact proceedings concerning A, a girl aged nine.
2. A's parents, who married in the year before her birth, separated in acrimony when she was a baby. The father, who is not British, returned to his own country. The mother and A have remained in England.
3. From the beginning, there were problems about contact. The father had to travel long distances and complained that the mother was being obstructive. The mother criticised the father in return. Orders were made over the years providing for staying contact in England during the father's visits.

The allegations

4. In May 2010, the mother applied to vary the most recent contact order. That application, long overdue for determination, arose in the following way.
5. In late 2009, a young person, known in these proceedings as X, alleged that she had been very seriously sexually abused by the father over a period of years, starting when she was a much younger child.
6. X, now no longer a child, has suffered from unexplained but increasingly poor physical and mental health for many years. Her account of abuse was first given to some known adults, who reported the matter to social services. When speaking to social workers, X insisted that she did not want any action to be taken on her complaint, or for her identity to be disclosed, even to her own parents. She refused to talk to the police, but in the end agreed that her parents had to be told. Her account has not always been consistent, but overall she has maintained it.
7. The local authority regarded the allegations as credible. Its first concern was for X, but it appreciated that the father would be coming to England for contact with A. Accordingly, in March 2010 it approached the mother and told her that a credible allegation of sexual abuse had been made against the father by an unidentified person. It told her that she should take action to protect A.

The present proceedings

8. This placed the mother in an unenviable position. She had been ordered by the court to make A available for contact and was now being told by the local authority that this was not safe. She applied to vary the contact order to allow supervised contact only and the father was in turn faced in May 2010 with an application to stop contact on the basis of an unspecified allegation by an unidentified person. It could fairly be described as an impossible situation.
9. Not long after the proceedings began, the mother became aware of X's identity. She has since spoken to X and says that she believes her allegations.
10. There is no evidence of sexual harm having come to A. While the proceedings have continued, the father's occasional contact has been supervised by friends of the family.
11. There were a number of hearings at which little progress was made, with the parents seeking disclosure and the local authority resisting it. In May 2011, the matter was transferred to the High Court and at that point a Children's Guardian was appointed for A.
12. At hearings before me in September 2011, the parents (by that stage no longer legally represented) and the Guardian sought disclosure of X's file. The local authority, mindful of its duties to both X and A, now took a neutral position. X, who is legally represented, sought permission to obtain a psychiatric report concerning the likely effect of disclosure upon her mental and physical health.
13. Having heard submissions and read the local authority's files, I have reached the conclusion that it would be impossible for the reliability of the allegations to be tested without a hearing at which both X and the father gave evidence.
14. Plainly, the preferable outcome was for X to agree to disclosure and to be able and willing to give evidence. I therefore deferred a decision until December 2011 to allow her to be encouraged to participate by her legal and psychiatric advisers. I directed that she should be told of the special measures that could be put in place to allow her to give evidence. I urged her to reflect not only on any harm that she may have suffered, but also upon her responsibilities, however unwelcome. I acknowledged that there might be good or even compelling reasons for her stance, but that it came at a high price for others.
15. In the event, the matter could not return for hearing until January 2012 because of a period of hospitalisation for X, the commitments of her consultant psychiatrist, Dr Walsh, and listing difficulties around the Christmas period.

Medical opinion

16. Dr Walsh has known X professionally since 2010. She has read the relevant documents, spoken to X's GP, and interviewed X in December 2011. She has now reported on the potential psychological/psychiatric implications for X of (1) disclosure of social services' records, or (2) being summoned to give evidence. She has produced two documents:

• A full report for the court reviewing X's medical and psychiatric records in detail, describing her interview, and giving her opinion and answers to the questions raised.

• A condensed version for disclosure to the parties, omitting identifying information, but setting out her opinion and answers in identical terms.

17. In Dr Walsh's opinion it would be detrimental to X's physical and mental health if information held by the local authority were to be disclosed and if X were required to give evidence in court.
18. Her report reads as follows:

X's allegations of abuse and events relating to her subsequent disclosure are relevant to my assessment of two reasons: (1) there appears to be a close temporal relationship between X's reported experiences of abuse and her presentation with episodes of medically unexplained symptoms; (2) X's experience of disclosure has left her feeling vulnerable and lacking in trust. In particular she feels that her confidentiality has not been respected and that she has been misled about the potential implications of disclosure.

Medically Unexplained Symptoms

X has a long history of repeated presentations with medically unexplained symptoms commencing in early childhood. Medically unexplained symptoms (i.e., symptoms for which no physical cause can be found) are often a manifestation of underlying psychological distress although the person presenting might not recognise this. One psychological perspective is that presentation with medical symptoms provides an alternative route to care and respite when other more adaptive avenues of rescue are, for whatever reason, not open. Although concerns have been expressed over time about the frequent, often non-specific and sometimes dramatic presentations of X to medical services, it is with the benefit of time and with the availability of information brought together from a variety of sources (including social services), that a clear pattern can now be seen. Most recently, X has experienced episodes of physical illness which have at times been life-threatening. It is the opinion of a number of medical professionals caring for her (based on a variety of clinical observations) that stress/psychological factors are, at the very least, exacerbating her symptoms. As a result of her frequent presentations with exacerbations of this condition, X has received medical treatment which has had a number of damaging side-effects and there has been significant deterioration in her health.

X has been clear that the ongoing legal issues are a major source of stress and there does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from these. In order to safeguard her health, an ongoing aim of management is to try and reduce her exposure to various stressors and to engage her in psychological therapy which might provide her with an adaptive outlet for expressing difficulties. However, this is likely to be a challenging and relatively long-term process.

Events around disclosure

X feels that her initial disclosure put in motion a chain of events which has left her feeling distrustful and lacking confidence in processes that should have been protective of her. In particular it is her perception that, despite reassurances about confidentiality, it has at times been breached which has had negative consequences for her. In addition, she feels that she was led to believe that she would never be required to speak of the allegations again and the current situation has therefore, once again, undermined her confidence in the system.

With regards the specific questions which I was asked to address:

a) Psychological/psychiatric implications for or effects upon X regarding the disclosure of social services records to the parties

It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.

b) The psychological/psychiatric implications for or effects upon X of being summoned to the court to give oral evidence about the allegations documented in the said records

My opinion on this is as above. Being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health.

c) X's capacity with appropriate support to participate in the court proceedings including making a statement and attending court to give evidence

I believe that X has the capacity to participate in court proceedings. However, it should be noted that various professionals at different times have commented on the difficulty of interviewing her in relation to the alleged abuse. My own experience of exploring these issues with her is that many of my questions were met with silence; she was clearly very uncomfortable and distressed and seemed unable to respond. When I asked her about appearing in court she responded "I can't".

d) X's understanding of the measures which might be put in place to protect her as a vulnerable witness

When asked about her understanding of these, X told me that she understood that she could provide evidence via video link. However she said that this would be a traumatic prospect for her as she understood that the alleged abuser would be able to see her face and she could not cope with this. As above, I also think that her perception that processes so far have, to some extent, let her down means that she does not feel confident in any of the reassurances provided.

19. Dr Walsh's full report gives a more striking account of the pervasive nature of X's chronic difficulties and the serious effect that they are having on her daily life.
20. A report has also been produced by X's consultant physician, who says that she has ongoing severe physical symptoms, namely steroid-dependant difficult asthma and myopathy [muscular disease]. She has recently been admitted as an inpatient for an assessment that not yet complete.

The parties' positions

21. The father denies sexually abusing anybody. He has not been informed of X's identity and says that he does not know it. He says that the mother is in collusion with X and is using the allegations as a new opportunity to obstruct contact. X is clearly a vulnerable person who can easily be manipulated. She is refusing to participate because she knows her allegations are false. If the matter is fully investigated, it would relieve her of the burden of lies. The medical report states that she has capacity to participate and her medical condition is no more than asthma. The allegations have had a profound effect on him and on A. For the court not to insist upon tested them is fundamentally unjust and would amount to it becoming a kangaroo court. It would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first. There must be a trial attended by X.
22. The mother says that she is torn between the need to protect A and reluctance to add to the pressure on X, who is known to A. She says that there should be disclosure if it is the only means by which A can be protected, but expresses concern about the consequences for X and the knock-on consequences for A. She describes as obscene the father's allegation that she is using a vulnerable person like X as a weapon against him.
23. X is distressed that her complaint has been revealed by the local authority, even anonymously and without details. She strongly resists disclosure of her identity or of information from which it might be deduced. Not knowing whether others have also been sexually abused, she does not want the father to know her identity. If an application is made for a witness summons she will oppose it. She would not be able to speak about her allegations if she were brought to court. She is acutely distressed at the effect of the proceedings on her already fragile state of health.
24. A's Guardian is unable to fully represent her interests without knowing where the truth lies. She is now aware of X's identity, but not of the detail of the allegations. She observes that it is impossible for her or the parents to know without disclosure whether the court would be able to conduct an effective fact-finding hearing. She raises the possibility that disclosure would allow the parents to follow particular leads and produce evidence that might tend to prove or disprove the allegations. She says that the issue of disclosure should be dealt with first and that any application for an order to compel X to attend court should be dealt with separately. She points out that X could give evidence without the father seeing her face (by using a screens or a witness intermediary). She submits that the rights of A, a child, should prevail over those of X, an adult. Anything else would be a huge betrayal of A, who, in the absence of a trial, would be exposed to risks arising from unsupervised contact.
25. The local authority has presented the arguments for and against disclosure, to which I now come.

Discussion

26. The court is required to balance a number of competing factors, corresponding to Convention rights. Relevantly, these are:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1.. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1.. Everyone has the right to respect for his private and family life, his home and his correspondence.

2.. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

27. When balancing these rights, necessary to focus on the actual situation of the individuals concerned, rather than indulging in theoretical debate. It is nonetheless necessary to hold in mind two incompatible scenarios, in one of which X's account is assumed to be true, while in the other it is assumed to be false.
28. The nature of the balancing exercise was considered by the Court of Appeal in A Local Authority v A [2010] 2 FLR 1757 [#38], where (citing Re X (Adoption: Confidential Procedure [2002] 2 FLR 476) it was said that the fundamental objective is the striking of a fair balance between the various rights and interests within the context of achieving a fair trial.
29. I find that in this case the following articles are engaged so far as the court and the local authority as public bodies are concerned:

• Article 6, entitling A and her parents to a fair hearing of X's allegations

• Article 8, guaranteeing respect for the family life of A and her parents

• Article 8, guaranteeing respect for the private life of X

• Article 3, prohibiting inhuman or degrading treatment of A and of X

30. The right to a fair hearing is unqualified but does not carry with it an absolute right to see all documents: Re B (Disclosure to Other Parties) [2001] 2 FR 1017. That decision also confirms that the rights of third parties such as X must also be considered when issues of disclosure arise. A full hearing cannot take place if it is impracticable, or where the rights of others ought to prevail.
31. The Art. 8 rights of the family members in this case also carry great weight. As I said when adjourning the matter last year, we are concerned about the very relationship between A and her father and we are also concerned for A's safety.
32. X's Art. 8 right to respect for her private life is also a significant factor. In Pretty v United Kingdom (2002) 35 EHRR 1, the ECtHR stated that the concept of "private life" is a broad term not susceptible to exhaustive definition, but that it covers a person's physical and psychological integrity. As is said in Lester, Pannick & Herberg: Human Rights Law and Practice at 4.8.11, Article 8 encompasses the right to keep to oneself.
33. In Bensaid v United Kingdom (2001) 33 EHRR 205, the court said that

"Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. … The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."

34. I consider that X's wish not to speak further about her alleged experience of sexual abuse is an aspect of her private life that is also protected by Art. 8 and must be balanced against other considerations. The same is true of the risks to X's mental and physical health.
35. Article 3 is particularly intended to protect children such as A and vulnerable people such as X: A v United Kingdom (1999) 27 EHRR 611. A's Article 3 rights would also be engaged in any situation that might avoidably expose her to sexual abuse: Z and Others v United Kingdom (2001) 34 EHRR 3.
36. I also consider that the medical evidence establishes that the risk to X's mental and physical health if she were required to give evidence would probably reach the high threshold that is required for Art. 3 to be engaged. Forcing X to give evidence when she may have been severely sexually abused as a child and is now in a precarious state of health as a vulnerable young adult is in my view capable of amounting to inhuman treatment.
37. I also do not lose sight of the local authority's public interest concern about the effect of breaking confidence with those who wish to speak of abuse and seek help.

Conclusion

38. This is a predicament to which there is no easy solution. I am satisfied that the court (unlike any of the parties other than the local authority) has the necessary information upon which to reach a decision. However, the issue of confidentiality places limits on what can be said when giving reasons for my decision.
39. I have rejected the idea of requiring X to come to court to be spoken to directly, as would probably occur if she had made a statement in criminal proceedings. I am satisfied that she has been given every encouragement to participate and that nothing is to be gained by pressuring her further.
40. I am also satisfied that the father's accusation that the mother is behind X's allegations is unjustified, wherever responsibility may lie for the state of the parents' relationship generally. The mother did not learn about the allegations until months after they were made, and the records show that they came as a surprise to her.
41. There are levels of information in this matter:

(1) Firstly, the local authority files contain information about the history of X's allegations.

(2) Next, they contain information about X's personal background, family life and medical history, as does the full report of Dr Walsh.

(3) Lastly, there is the question of compelling X to give evidence.

42. These aspects cannot in my view be dealt with in isolation from each other. In this, I disagree with the Guardian's submission. It is not realistic to decide the application for disclosure of documents without considering the consequences if the application were to succeed. Although the question of the issuing of a witness summons does not formally arise at this stage, it is inevitable that it will if X's identity is revealed. Once a summons was issued, X would apply to set it aside under the Family Procedure Rules 2010 r. 24.3(4). At the outset, the court is entitled, and in these circumstances obliged, to ask the question "Where is this going?".
43. Turning first to that issue, I have reached the clear conclusion that compelling X to give evidence would be oppressive and wrong. It is likely to have a severe and possibly dangerous impact upon her health and well-being. There are also real practical difficulties in securing X's attendance and in her being cross-examined by the father. I have considered the various special measures of the kind set out in the Youth Justice and Criminal Evidence Act 1999 ss.23-29, but none of these would in my view provide an adequate solution. The potential unfairness to other parties cannot outweigh these considerations.
44. I further find that the balance falls against general disclosure of X's personal and medical history. It would be likely to be damaging to X and would serve no good purpose. The parties already know that she is a vulnerable person and the details will not alter the fact.
45. That brings me to what is the most difficult aspect of the matter: disclosure of X's identity and allegations. I have carefully considered whether this can be achieved, and find the decision finely balanced. On the one hand, the prospect of a parent being denied normal contact with a child on the strength of undisclosed allegations from an anonymous source is deeply troubling and could only be entertained in compelling circumstances.
46. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X's identity and allegations to be disclosed to the parties. My reasons are these:

(1) I accept the medical evidence about the potentially serious effect of disclosure on X's health.

(2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

(3) X's identity and her allegations are inextricably intertwined.

(4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X's allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X's absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

(5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

47. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian's submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A's welfare.
48. The application for disclosure of further information about X and her allegations is dismissed.
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