‘The allegations 4. In May 2010, the mother applied to vary the most recent contact order. That application, long overdue for determination, arose in the following way. 5. In late 2009, a young person, known in these proceedings as X, alleged that she had been very seriously sexually abused by the father over a period of years, starting when she was a much younger child. 6. X, now no longer a child, has suffered from unexplained but increasingly poor physical and mental health for many years. Her account of abuse was first given to some known adults, who reported the matter to social services. When speaking to social workers, X insisted that she did not want any action to be taken on her complaint, or for her identity to be disclosed, even to her own parents. She refused to talk to the police, but in the end agreed that her parents had to be told. Her account has not always been consistent, but overall she has maintained it. 7. The local authority regarded the allegations as credible. Its first concern was for X, but it appreciated that the father would be coming to England for contact with A. Accordingly, in March 2010 it approached the mother and told her that a credible allegation of sexual abuse had been made against the father by an unidentified person. It told her that she should take action to protect A. The present proceedings 8. This placed the mother in an unenviable position. She had been ordered by the court to make A available for contact and was now being told by the local authority that this was not safe. She applied to vary the contact order to allow supervised contact only and the father was in turn faced in May 2010 with an application to stop contact on the basis of an unspecified allegation by an unidentified person. It could fairly be described as an impossible situation. 9. Not long after the proceedings began, the mother became aware of X’s identity. She has since spoken to X and says that she believes her allegations. 10. There is no evidence of sexual harm having come to A. While the proceedings have continued, the father’s occasional contact has been supervised by friends of the family. 11. There were a number of hearings at which little progress was made, with the parents seeking disclosure and the local authority resisting it. In May 2011, the matter was transferred to the High Court and at that point a Children’s Guardian was appointed for A. 12. At hearings before me in September 2011, the parents (by that stage no longer legally represented) and the guardian sought disclosure of X’s file. The local authority, mindful of its duties to both X and A, now took a neutral position. X, who is legally represented, sought permission to obtain a psychiatric report concerning the likely effect of disclosure upon her mental and physical health. 13. Having heard submissions and read the local authority’s files, I have reached the conclusion that it would be impossible for the reliability of the allegations to be tested without a hearing at which both X and the father gave evidence. 14. Plainly, the preferable outcome was for X to agree to disclosure and to be able and willing to give evidence. I therefore deferred a decision until December 2011 to allow her to be encouraged to participate by her legal and psychiatric advisers. I directed that she should be told of the special measures that could be put in place to allow her to give evidence. I urged her to reflect not only on any harm that she may have suffered, but also upon her responsibilities, however unwelcome. I acknowledged that there might be good or even compelling reasons for her stance, but that it came at a high price for others. 15. In the event, the matter could not return for hearing until January 2012 because of a period of hospitalisation for X, the commitments of her consultant psychiatrist, Dr W, and listing difficulties around the Christmas period. Medical opinion 16. Dr W has known X professionally since 2010. She has read the relevant documents, spoken to X’s GP, and interviewed X in December 2011. She has now reported on the potential psychological/psychiatric implications for X of (1) disclosure of social services’ records, or (2) being summoned to give evidence. She has produced two documents: • A full report for the court reviewing X’s medical and psychiatric records in detail, describing her interview, and giving her opinion and answers to the questions raised. • A condensed version for disclosure to the parties, omitting identifying information, but setting out her opinion and answers in identical terms. 17. In Dr W’s opinion it would be detrimental to X’s physical and mental health if information held by the local authority were to be disclosed and if X were required to give evidence in court. 18. Her report reads as follows: X’s allegations of abuse and events relating to her subsequent disclosure are relevant to my assessment of two reasons: (1) there appears to be a close temporal relationship between X’s reported experiences of abuse and her presentation with episodes of medically unexplained symptoms; (2) X’s experience of disclosure has left her feeling vulnerable and lacking in trust. In particular she feels that her confidentiality has not been respected and that she has been misled about the potential implications of disclosure. Medically Unexplained Symptoms X has a long history of repeated presentations with medically unexplained symptoms commencing in early childhood. Medically unexplained symptoms (i.e., symptoms for which no physical cause can be found) are often a manifestation of underlying psychological distress although the person presenting might not recognise this. One psychological perspective is that presentation with medical symptoms provides an alternative route to care and respite when other more adaptive avenues of rescue are, for whatever reason, not open. Although concerns have been expressed over time about the frequent, often non-specific and sometimes dramatic presentations of X to medical services, it is with the benefit of time and with the availability of information brought together from a variety of sources (including social services), that a clear pattern can now be seen. Most recently, X has experienced episodes of physical illness which have at times been life-threatening. It is the opinion of a number of medical professionals caring for her (based on a variety of clinical observations) that stress/psychological factors are, at the very least, exacerbating her symptoms. As a result of her frequent presentations with exacerbations of this condition, X has received medical treatment which has had a number of damaging side-effects and there has been significant deterioration in her health. X has been clear that the ongoing legal issues are a major source of stress and there does appear to be a pattern of worsening illness which coincides with the increasing pressures arising from these. In order to safeguard her health, an ongoing aim of management is to try and reduce her exposure to various stressors and to engage her in psychological therapy which might provide her with an adaptive outlet for expressing difficulties. However, this is likely to be a challenging and relatively long-term process. Events around disclosure X feels that her initial disclosure put in motion a chain of events which has left her feeling distrustful and lacking confidence in processes that should have been protective of her. In particular it is her perception that, despite reassurances about confidentiality, it has at times been breached which has had negative consequences for her. In addition, she feels that she was led to believe that she would never be required to speak of the allegations again and the current situation has therefore, once again, undermined her confidence in the system. With regards the specific questions which I was asked to address: a) Psychological/psychiatric implications for or effects upon X regarding the disclosure of social services records to the parties It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy. b) The psychological/psychiatric implications for or effects upon X of being summoned to the court to give oral evidence about the allegations documented in the said records My opinion on this is as above. Being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health. c) X’s capacity with appropriate support to participate in the court proceedings including making a statement and attending court to give evidence I believe that X has the capacity to participate in court proceedings. However, it should be noted that various professionals at different times have commented on the difficulty of interviewing her in relation to the alleged abuse. My own experience of exploring these issues with her is that many of my questions were met with silence; she was clearly very uncomfortable and distressed and seemed unable to respond. When I asked her about appearing in court she responded "I can't". d) X’s understanding of the measures which might be put in place to protect her as a vulnerable witness When asked about her understanding of these, X told me that she understood that she could provide evidence via video link. However she said that this would be a traumatic prospect for her as she understood that the alleged abuser would be able to see her face and she could not cope with this. As above, I also think that her perception that processes so far have, to some extent, let her down means that she does not feel confident in any of the reassurances provided. 19. Dr W’s full report gives a more striking account of the pervasive nature of X’s chronic difficulties and the serious effect that they are having on her daily life. 20. A report has also been produced by X’s consultant physician, who says that she has ongoing severe physical symptoms, namely steroid-dependant difficult asthma and myopathy [muscular disease]. She has recently been admitted as an inpatient for an assessment that is not yet complete.’
‘It is likely to have a severe and possibly dangerous impact upon her health and well-being. There are also real practical difficulties in securing X’s attendance and in her being cross-examined by the father. I have considered the various special measures of the kind set out in theYouth Justice and Criminal Evidence Act 1999 ss.23-29, but none of these would in my view provide an adequate solution. The potential unfairness to other parties cannot outweigh these considerations.’
‘I believe the court has a responsibility to protect both A and X from any future harm, and I am seeking disclosure only if it will help to achieve this. I believe that, having read all the relevant documents, Mr Justice Jackson has concluded that disclosure is unlikely to achieve anything positive for A, and it is likely to be significantly detrimental to X’s health. As such, and with reluctance, I do not support the appeal.’
‘I do agree with the children’s guardian that it appears that more emphasis has been placed on the impact of disclosure on X than on the impact of non-disclosure on A. In his judgment, Mr Justice Peter Jackson rules that even if the allegations made by X cannot be proved, this will not automatically lead to an order for unsupervised contact, and this is presumably why he did not feel compelled to address that issue alongside the question of disclosure. However in her appeal, the children’s guardian asserts that unless the allegations can be proved, on the balance of probabilities, the judge will be unable to take into account the fact that they have been made, with the implication that the previous contact order, which allowed for unsupervised contact, would be reinstated. The question of what will be the outcome for A if the allegations cannot be proved is one that I have been asking from the beginning when disclosure was first challenged, and in my opinion it should form the crux of the appeal court deliberations, because it is impossible to weigh up the competing rights of the parties without considering all the possible outcomes and following each through to its natural conclusion.’
‘Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.’
‘It is quite wrong that, for an indefinite period, the father should not know of [the allegations] and be given the opportunity to deny them if they are untrue or explain them if they are true in part. Balancing these factors, in my view the interests of justice to the father greatly outweighed any possible detriment to [the complainant]’
‘In my judgment it was quite impossible that the father should be kept in indefinite ignorance of the allegations made against him, since those allegations were the basis of the mother’s application that he be denied contact with his son.’
‘In the reported cases the conflict is usually between those who call for full disclosure of the information in order to achieve a fair trial under Art 6 and those who claim that disclosure will infringe their rights under Art 8, whether on the ground of privacy or confidentiality or some other reason. Unlike the right to a fair trial, which is absolute and unqualified, Art 8 rights are qualified rights. They are expressly subject, among other things, to protection of the rights and freedoms of others. This case concerns not only Art 8 rights, but also Art 2 and Art 3 rights, of the mother, sister and Aunt. Article 2 and Art 3 rights are not qualified rights, and that fact as well as their position in the list of rights and freedoms in the Convention highlight their importance.’
‘For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.’