Case No. NE21FF08154

39.I duly heard, without notice to the other parties, M’s application to withhold her statement as a preliminary issue at the outset of the hearing. 40.The ambit of FPR 11.7(2) is slightly wider than FPR21.3 which enables a party to apply to court for an order withholding inspection of a document. I was not referred to any authority specifically on how the court should exercise its power under FPR11.7(2) but I was referred to authorities on the exercise of the court’s power to permit a party to withhold inspection of a document. Mr Ekaney KC, on behalf of the mother, agreed that there was no difference to the applicable principles.41.In Durham County Council v Dunn [2012] EWCA Civ 1654, Maurice Kay LJ summarised the relevant applicable principles to withholding disclosure of a document in children proceedings:“First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing Convention rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”42.In argument, I queried why the statement should not in the first instance be disclosed to the children’s guardian. While Mr Ekaney KC had in a written submission suggested that service even on the guardian might compromise (in the sense of fetter) the ability of the guardian to provide the court with objective analysis, he conceded, quite properly in my judgment, that it should be disclosed. It appeared to me that I would require assistance from the children’s guardian both as to whether the withholding of the statement was required for the protection of H. Disclosure to the guardian would also be consistent with the approach taken in the analogous situation where the withholding of documents from a file held by the Secretary of State for the Home Department is sought by asylum seekers who as parents are involved in related children proceedings – see G v G [2021] UKSC 9. It is left to the guardian and her legal advisers to assist the court on the issues relevant to its non-disclosure to other party, usually the other parent.43.After due reflection and consideration the Children’s Guardian supported the application to withhold the statement from F. I accepted the joint submissions made by Mr Donnelly and Mr Ekaney ruling, with an important caveat, that the statement should be withheld from F. With their agreement, I postponed the giving of my reasons to this judgment which will be available to F in its entirety. Those reasons are as follows:i)The statement makes clear that there is not a man in The Gambia with whom M had an extra-marital affair. In my judgment the only possible relevant issue is the credibility of M which is a matter for me. The contents of the statement did not in my judgment introduce a further risk factor for the court to assess.ii)By his choice, F has left the risk assessment to the professionals and the court. He did not attend to question the experts. I make no criticism of his choice, given he is not H’s father and has important work commitments.iii)Mr Donnelly made clear to me that while he was instructed to test the credibility of M, he could question her in a way which would not require him to reveal the contents of the statement.iv)Moreover, if I am wrong about relevance, I am satisfied that there is a likelihood of H suffering real harm if the statement is disclosed. I do not propose to provide a further explanation of why, because to do so would be tantamount to disclosing the statement itself.v)I was satisfied (and remain satisfied) that F’s right to a fair trial of the issues he wishes to put before the court would not be (and in the event have not been) compromised by non-disclosure. vi)It is clear to me that, regardless of the direct risk to H, M has very valid and understandable reasons why she does not want the statement to be disclosed. While by itself this may not have been a sufficient factor to withhold disclosure, it does attract some weight in the balance I would have to strike, if I am wrong about the issue of relevance.44.The one caveat I made, and continue to make, is that I will keep the question of disclosure firmly under review. Having now heard all of the evidence I see no reason to lift the embargo on disclosure.45.However I accept Mr Donnelly’s submission that there may come a time when H herself has to be told about the circumstances of her conception. At that time it may be important for F have sight of M’s statement because it is in H’s best interests for him to do so. All are agreed that now is not the time to tell H that F is not her father.46.I can reassure F that nothing in the withheld statement should effect his view of H or is something he needs to know. I urge him to put it entirely out of his mind, for H’s sake. I remind him what Mr Ekaney KC told me in his closing submissions: F can be very sure that M was not having an affair with another man or had an undisclosed partner in The Gambia.