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Re J (A Child: Disclosure)  EWCA Civ 1204,  1 FLR (forthcoming) revisited a variety of the recent case law on restriction - or not - of disclosure of information in the light of Human Rights Act 1998; and especially of the respective rights to privacy of a prospective witness in a case, and of the right to a fair trial of the child's parents and the child. Public interest immunity seems only peripherally to have been considered. The wider procedural and evidential issues arising from Re J fall to be considered alongside a principled assessment as to how the withholding procedure (FPR 2010, r 21.3) is to operate (the West London Pipeline case), who should see the restricted documents and whether public interest immunity applies. The article considers restrictions on disclosure on grounds of privacy and public interest immunity and asks whether two different procedures and sets of legal principle should apply to them, and a third for the withholding of evidence covered by privilege.
David Burrows is the author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).
The full version of this article appears in the December 2012 issue of Family Law.