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Family Law

The leading authority on all aspects of family law

13 DEC 2012

Evidence, practice and procedure: X’s appeal rejected - disclosure still stands

David Burrows

Solicitor Advocate

@dbfamilylaw

David Burrows - Evidence, practice and procedure

David BurrowsIn Re A (A Child) [2012] UKSC 60, [2013] 1 FLR (forthcoming) (heard as Re J (A Child: Disclosure) (Rev 1) [2012] EWCA Civ 1204 in the Court of Appeal) the issue before the Supreme Court was whether disclosure of the identity of a father's accuser (‘X', ‘a young person' - age not disclosed) and the substance of her allegations against him should be given to the parties in contact proceedings relating to their child; and whether X should be required to give evidence in those proceedings. A (the child in the proceedings) is aged 10 and her parents, G and J, separated in 2002. J lives in Australia. He applied for contact and a final order, in 2009, provided staying contact for him with A.

X made serious allegations of sexual abuse by J, that allegedly took place when she was a child. X made the allegations in confidence (as she thought) and did not wish to take them any further. Social Services contacted G and told her that allegations of sexual abuse had been made against J by an unnamed person. She should take steps to protect A. G applied to vary the contact order based on this information. J and A's guardian applied for disclosure of X's identity, the substance of the allegations and her medical records. The local authority claimed public interest immunity. X suffers from significant mental and physical health problems which at times have been life threatening. Her psychiatric report said that forcing her to give evidence in the proceedings would have seriously detrimental effects on her. Peter Jackson J had sight of all the confidential material and refused to order disclosure: the effect on X's health would be too detrimental. The Court of Appeal reversed that decision and ordered disclosure; and assumed that J would issue a witness summons to require X to give evidence. 

The Supreme Court rejected X's appeal: the information from X must be disclosed to all parties. The parties' right to a fair trial (European Convention 1950 Art 6(1)) overrode the right of X to her privacy (Art 8) and to any suggested inhuman or degrading treatment (Art 3). The Court did, however give a little more consideration than had the Court of Appeal to the question of X's role as an informer and to the public interest immunity which her evidence might attract (para [15]; D v National Society for the Prevention of Cruelty to Children [1978] AC 171, (1977) FLR Rep 181).

Unfortunately they did not consider the position where information is given by a person in X's position to a solicitor, when that information in a context like this would have had the absolute protection of legal advice privilege. Nor did the Court relate their reasoning to the parallel confidentiality/privilege case in the Supreme Court where judgement is still awaited (on appeal from R (on the application of Prudential Plc & Anor) v Special Commissioner of Income Tax & Ors [2010] EWCA Civ 1094, [2011] 2 WLR 50). Thus, for example, if privilege is found to attach to the giving of advice and assistance because of the subject matter of the issue (ie Prudential's argument in the Supreme Court), not the profession of the adviser, might not the social worker, teacher or mediator be in a similar position to a lawyer in terms of privilege in cases like Re A?

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Privilege is dealt with in Chapters 25 to 28, and public interest immunity and Re J in Chapter 29.  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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