EX22P00295 - [2025] EWHC 718 (Fam)

The law

I am very grateful to all the parties for their skeleton arguments setting out the law in relation to disclosure in proceedings such as this.

When considering the question of disclosure of information/documents the first test is one of relevance. In Durham County Council v Dunn [2012] EWCA Civ 1654 (Maurice Kay, Munby and Tomlinson LJJ) it was stated at §23 that:

“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 ECHR 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”.

The Article 8 rights under the European Convention on Human Rights (“ECHR”) of Q are clearly engaged. Adult or child, medical information is in a category which attracts a very high degree of privacy. Q is almost 17 years old, and there is no question that he has capacity to make decisions about sharing his personal information The issues covered by the report are of a highly sensitive nature. By contrast, a parent does not have corresponding Article 8 rights to be given confidential information about a child with capacity, on the basis that he is deemed able to look after himself or make his own decisions: R (On the application of Axon) v Secretary of State for Health and Anor [2006] EWHC 37 (Admin).

A child’s Article 8 rights must also be looked at through the prism of the UN Convention on the Rights of a Child (“UNCRC”) Article 3(1).

The mother does, however, have a right to a fair trial pursuant to Article 6 of the ECHR. In the normal course of events this would mean she is entitled to disclosure of relevant documents. Nonetheless, the courts have made it clear that this does not mean that she has an absolute and unqualified right to see all the documents in the case. In Re B (Disclosure to Other Parties)[2001] 2 FLR, Munby J said this at §67:

“So, a limited qualification of R’s right to see the documents may be acceptable if it is reasonably directed towards a clear and proper objective – in other words, if directed to the pursuit of the legitimate aim of respecting some other person’s rights under Art.8 – and if it represents no greater a qualification of R’s rights than the situation calls for. There may accordingly be circumstances in which, balancing a party’s prima facie Art.6 right to see all the relevant documents and the Art.8 rights of others, the balance can, compatibly with the Convention, be struck in such a way as to permit the withholding from a party of at least some of the documents. The balance is to be struck in a way which is fair, and which achieves a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved.”

The test for determining proportionality was set out by Lady Hale in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (at §33) (“the Tigere tests”), namely:

does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right;

is the measure rationally connected to that aim;

could a less intrusive measure be used; and

bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”

Disclosure of information may be refused if it would cause significant harm to a child. In T (Children: Non-Disclosure) [2024] EWCA Civ 241, Peter Jackson LJ set out the principles to be applied as follows:

A court that is asked to authorise non-disclosure in the interests of a child should therefore ask itself these questions:

Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them?

Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability?

Can the feared harm be addressed by measures to reduce its probability or likely impact?

Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure?

Where the child's interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances?

Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?”