Secret information, secret hearings…

Re I (A Child) [2016] EWHC 910 (Fam) (18 April 2016), Holman J (http://www.bailii.org/ew/cases/EWHC/Fam/2016/910.html) is indeed an odd case. (For a more specific view on its oddness, see https://suesspiciousminds.com/2016/04/21/something-something-oranges-something/). The first odd thing is that it came on for hearing at all; and the last is that one of the barristers in the case seems – unwittingly – to have discussed the case with a fellow member of chambers who was subsequently retained. We cannot be sure at this stage whether the second barrister is privy to the secret which is the central feature of the case.

 

For that secret is the central oddity of it all: a 15 year old had passed on information to a social worker, but insisted that his parents were not to be told. Should the judge be told, wondered the local authority and the guardian? Their representatives secured a hearing for to raise this before Holman J, but which only they were to attend.

 

The basic principle is that a court should not make a decision on any issue unless all parties are in on the decision-making and have read everything the judge has read (see eg Lobo Machado v Portugal (1996) 23 EHRR 79); Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700); and see Re M (Disclosure) (below).

 

The children law aspects of this principle were considered in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593. It is an adoption case; but the principles involved – whether or not a court should make a decision without a party having access to the same information as the judge – apply in children proceedings generally, as Thorpe LJ explained in Re M (Disclosure) [1998] 2 FLR 1028, CA (one of the cases specifically referred to by Holman J).

 

Lord Mustill explained sharing of information point in Re D as follows:

 

(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.

 

In Re M Thorpe LJ mentioned next Re C (Disclosure) [1996] 1 FLR 797, a decision of Johnson J. He had applied Lord Mustill’s principles, and gave procedural guidance for the correct procedure where the issue arises, namely (and all other things being equal):

 

(1)The application should be transferred to the High Court.

(2)Notice of the application should be given to the party from whom the material is intended to be withheld.

(3)It is essential that any party to whom the information was not to be revealed should have the opportunity of making representations to the court.

(4)Finally, in many cases it will be appropriate to follow the practice endorsed in Re K in 1965, namely disclosure in the first instance to counsel only, and thereafter obviously counsel would have the opportunity to apply for onward transmission to the client.

 

Thorpe LJ summarised the need for all parties to know what was going on as follows:

 

The judge should have perceived that an issue of that importance could only be addressed on an inter partes basis with a proper opportunity to the mother’s advocate to advance her submissions in opposition to the application. The application was never formerly submitted or served. There seems to have been an informality quite inappropriate to the gravity of the issue.… Manifestly this is a discretionary exercise that demonstrates error in law as well as discretionary error.

 

So a secret hearing should not have been fixed. Holman J seems to have stopped it all before things went too far. The application was on a shot gun basis: we spill the beans, said the local authority, unless you, the guardian, get the judge to tell us not to; or at least that the judge tells us that our view of disclosure, in the circumstances, is wrong. Faced with that ultimatum the guardian issued an application:

 

[3] The local authority therefore consider that they are under a duty to reveal or disclose the information to both parents; and they have said that they will do so unless prevented by the court, or at any rate unless the court indicates that in its view the local authority are not, on the facts and in the circumstances of this case, under a duty to disclose the information. That issue having arisen between the local authority and the guardian, the guardian issued an application dated 18th March 2016 in form C2.

 

All parties – the parents in Re I – are entitled to know what is going on, procedurally at least. It maybe – just, perhaps – that special arrangements need to be made for the judge only to read the evidence from I before a decision is made as to what his parents be told; but they must know what is being done.

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2 thoughts on “Secret information, secret hearings…

  1. “All parties – the parents in Re I – are entitled to know what is going on, procedurally at least. It maybe – just, perhaps – that special arrangements need to be made for the judge only to read the evidence from I before a decision is made as to what his parents be told; but they must know what is being done.”

  2. Reblogged this on | truthaholics and commented:
    “All parties – the parents in Re I – are entitled to know what is going on, procedurally at least. It maybe – just, perhaps – that special arrangements need to be made for the judge only to read the evidence from I before a decision is made as to what his parents be told; but they must know what is being done.”

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