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(Supreme Court, Lord Neuberger of Abbotsbury, Baroness Hale of Richmond, Lord Clark of Stone-cum-Ebony, Lord Wilson of Culworth, Lord Reed, 12 December 2012)
The 10-year-old child had staying contact with her father twice a year in Australia where he lived. When a young girl made allegations of historic sexual abuse against the father the mother was advised by the local authority not to allow contact as the allegations were being treated as credible.
The young girl, who suffered from mental and physical ill health, wished her identity to remain anonymous. The mother applied to vary contact arrangements to shorter and supervised periods and during those proceedings the question of disclosure arose. Due to the likely severe impact on the young girl's well-being the High Court held that the balance fell against ordering disclosure.
The children's guardian appealed to the Court of Appeal. The CA found that the judge had failed to consider the competing interests under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The court had been wrong to link the young girl's ability to give oral evidence with the issue of disclosure. Disclosure of the core material had a freestanding value irrespective of whether or not in due course the girl would be called to give evidence. The balance fell in favour of disclosing the identity of the young girl and the records as to the substance of the allegations to the mother, father and children's guardian.
Permission to appeal to the Supreme Court was granted.
In agreement with the Court of Appeal, the Supreme Court found that disclosure would not violate the girl's rights under Art 3 of the European Convention. A high threshold was required to found a breach of Art 3 and in the context of the instant case where the State was acting in support of important public interests and the girl was under the specialist care of a consultant physician and consultant psychiatrist, who would no doubt do their utmost to mitigate any further suffering disclosure may cause, that threshold had not been met.
Disclosure undoubtedly interfered with the girl's right to respect for her private life enshrined under Art 8 of the European Convention but the only possible conclusion was that the family life and fair trial rights of the mother, father and the child were a sufficient justification for an interference with the privacy rights of the girl. But it did not follow that she would certainly be required to give evidence. While the High Court judge was right to ask where the case was heading in such a case it was proper and sensible to proceed one step at a time and to assess and reassess the competing rights as matters unfolded.
Disclosure in itself could be sufficient to resolve matters but even if it did not there were numerous options available for the girl's evidence to be presented to the court aside from the conventional route of giving live evidence in the courtroom particularly so in family proceedings which had more flexibility than others.
Appeal dismissed. Disclosure order upheld.