“10 There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public … 11 The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott[1913] AC 417 , Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as constituting “a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security”
“The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention – trade secrets – is of the essence of the cause. The first two of these cases, my Lords, depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriae. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.”
“although R is entitled under Art 6 to a fair trial, and although his right to a fair trial is absolute and cannot be qualified by either the mother’s or the children’s or, indeed, anyone else’s rights under Art 8, that does not mean that he necessarily has an absolute and unqualified right to see all the documents ... On this aspect of the matter I see nothing in subsequent Convention jurisprudence to cast any doubt on what the House of Lords said in In re D (Minors) (Adoption Reports: Confidentiality)[1996] AC 593 .”
“Are cases about the future care and upbringing of children any different? The whole purpose of such cases is to protect and promote the welfare of any child or children involved. So there are circumstances in which it is possible for the decision-maker to take into account material which has not been disclosed to the parties.”
“It will thus be seen that these principles are designed to protect the welfare of the child who is the subject of the proceedings, to prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child.”
“Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order nondisclosure only when the case for doing so is compelling.”
“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.”
“the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child. ... If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur. … If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.”
“disclosure is never a simply binary question: yes or no. There may be circumstances ... where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised.”
“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 free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.”
“In conclusion then the Court should approach the matter this way: i The Rules and the decided cases clearly point to a presumption that there should be disclosure of all documents unless good reason to the contrary are shown – is the withholding of disclosure strictly necessary? ii Applying the test of strict necessity involves the Judge who is to decide the case reading the unredacted documents and deciding for himself whether or not the documents can be withheld. iii In deciding whether or not documents should be so withheld the Judge should bear in mind the best interests of [in this case] CC. iv In determining best interests the Judge should conduct a balancing act, weighing up [as I have done] the competing rights of the parties under Articles 6 and 8 of the European Convention. v Having done so the Court will direct accordingly but should as in PII cases keep the matter under constant review and invite further submissions if he deems it necessary.”
“I do not consider that just because a matter might be disclosable in a family case it follows that it is disclosable here. In any event there are cases where certain evidence is not disclosed in family cases – interveners are not shown all the evidence in a care application; in an adoption application the names and addresses of the adopters are normally withheld from the birth parents. A parent’s address and full circumstances may be kept confidential as is a foster placement in most instances. Information revealing addresses is appropriately redacted. Moreover in a family dispute by contrast the information about family life is often the very information that all parties need to see in addressing the issues at stake. It is the domestic circumstances of a party that give rise to an argument for or against residence or contact. Here the issue is different – is it in CC’s interest to recommence a family relationship with a Mother from whom the family relationship has been legally severed? It is not about the quality of CC’s life with her adoptive Father.”
“Should the details of CC’s circumstances be fully revealed to her birth mother many years after an adoption order and when she has not seen CC since early childhood?”
“That gives a detailed picture of CC’s intellectual abilities, sets out up to date psychometric tests and their results, and draws careful conclusions about CC’s wishes and feelings as to contact. If the whole of the psychological report were disclosed then it would reveal the whereabouts of CC and the psychological services with which she is engaging. In other words I do not consider anything in that report in full assists RC any further but that it potentially invades CC’s present private life. RC can of course see the redacted psychological report.”
“I have looked with care at the three documents filed by the social worker. The first … speaks of CC’s personal circumstances and reveals a deal of private information. The second does so all the more: it gives a very detailed breakdown of the social worker’s relationship and work with CC and reveals much of her family circumstances, and the work done with her as an incapacitous client; the third is short but does not take the matter any further save that again it describes work with CC.”
“I do not consider that RC needs to see the social work evidence to take her application further; moreover as well as it being an invasion of an adult’s right to respect for her privacy it also reveals much that could lead to her being traced. Whilst I have no evidence that RC would act improperly in abusing such information [say in an attempt to trace her] nonetheless it takes her case no further so long as her counsel can as needs be test the evidence.”
“I do not take the view at this stage that it is necessary for the unredacted psychological report nor the social worker’s evidence at all to be disclosed. But, as in public interest immunity cases, I shall keep the matter under review and invite further submission on that point as the need arises.”
“Are the Article 6 rights of RC engaged? Of course she has a right to a fair trial, of her application for contact with CC. I do not think the duty to promote equality of arms necessitates her to seeing these documents personally. She has access to the redacted psychological report and that evidence can be challenged as needs be. The social work evidence can be challenged in the manner I set out below. But she is not entitled to examine the private life of this vulnerable young woman; I am satisfied that it would be disturbing for CC for her rights to be invaded – her family is under strain. I do not consider it right for her to have to be told that private information had been divulged to a party whom in reality she does not know. It is right for the Official Solicitor in my judgment to seek to avoid any distress the knowledge of disclosure might cause CC. Accordingly it is right that RC sees the redacted psychological report alone. It is right that her counsel only sees the social work evidence but is under direction from me not to disclose it or discuss it with his client – so at least the social worker’s evidence can be properly tested. I take the view that Mr Chisholm is right – by limiting disclosure in this way I am denying only that which it is strictly necessary to deny. I do not consider that the social work evidence could in any feasible way be redacted.”