D (Minors), Re [1995] UKHL 17

House of Lords
Between
D (Minors), ReAppellant
Before
Lord Goff of ChieveleyDate 1 September 1995

LORD GOFF OF CHIEVELEY

[1]My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill, and for the reasons which he gives, I too, would allow this appeal. LORD BROWNE-WILKINSON My Lords,[2]I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill. For the reasons which he has given I would allow this appeal. LORD MUSTILL My Lords,[3]The procedure for the contested adoption of a child is one of the most anxious and difficult in the civil jurisdiction, for it deals with conflicting human needs and wishes which cannot be fully reconciled. This appeal is concerned with one aspect of that process, in which the dilemma is particularly acute, since the demands not only of human relationships but also of procedural fairness must be placed in the scales.[4]The essential facts of this appeal are simple and I will state them briefly, since the matter is to be returned to the County Court judge. Nothing said in this House should be understood as expressing any opinion on the merits either of the immediate procedural issue or of the underlying dispute which is still in progress.[5]The subjects of the proceedings are two children who are old enough to have preferences, to express them, and to discuss the case with their guardian ad litem. The parents, who were married when the children were born, suffered matrimonial difficulties which ended in divorce. The father remarried, and there is a child of this marriage. Also in the household there is a child of the step-mother by a former marriage. The father and the stepmother have adopted this child, and now wish to adopt the two children who are the subject of these proceedings. The natural mother opposes the adoption, and the proposed adopters seek to dispense with her consent on the ground that it is being withheld unreasonably and that she has persistently failed without reasonable cause to discharge her parental responsibility for the children. The applications have not yet been heard. Meanwhile the guardian ad litem has had several meetings with the children, amongst others, and has embodied her findings and recommendations in a report. There is an issue about the disclosure to the mother of two sections of this report. On 26 September 1994, His Honour Judge McNaught, sitting in the County Court, made an order that these two sections should not be disclosed. An appeal by the mother to the Court of Appeal was dismissed. She now appeals to this House. The first and second respondents to the appeal are the father and the step-mother. The third respondent is the guardian ad litem, who supports the father in resisting disclosure of the two sections in question. The local authority has been joined as fourth respondent.[6]The relations between the mother, the father and the step-mother have become bitter and litigious. There has been a long course of proceedings. Too long for the welfare of the children, who are anxious to know where they stand. The dispute about disclosure has already delayed the adoption proceedings by the better part of a year. Accordingly, since your Lordships formed a clear and unanimous opinion that the appeal should be allowed, and the question of disclosure returned to Judge McNaught for reconsideration, they thought it right that a formal judgment to that effect should be delivered soon after the end of the oral argument. The question is however of general importance and your Lordships were urged on all sides to resolve the uncertainties which currently prevail by restating the principles in a manner to which those who administer this jurisdiction can readily refer. In such circumstances it appeared advisable to postpone the delivery of reasons for the formal judgment until the matter could be fully considered. I now state my own reasons for concurring in the order of the House.[7]My Lords,[7]it is a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer. The requirement of openness is particularly important in proceedings for adoption, not only because it may lead to the deprivation of parental rights, in the self-centred meaning of that word, but because a successful application to adopt brings about a total rupture of the mutual relationship of responsibility and dependency which is the essence of the parental bond. The unique character of the relationship which the parent will lose, and the generally irreversible nature of the loss, make it specially important that in simple fairness to the parent he or she is aware of anything which may tend to bring it about. There is more to it than this, however, since fairness to a parent is a reflection of fairness to the child. The erasure of the bond with the natural parent and the creation of an entirely new set of responsibilities and dependencies shared with the adopters is an event of critical importance in the life of the child, whose paramount welfare demands that such a momentous step is taken only after a process which is as fair and thorough as can be devised.[8]Pulling in the other direction is an impulse towards the confidentiality of sensitive personal information. There are two distinct although often cumulative reasons why this impulse is a feature of proceedings for adoption. First, in a process where the judge is dependent to a great extent on secondhand knowledge of the circumstances it is in the interests of all those who are potentially affected by his decision that the information furnished to him shall be as full and candid as possible; and candour is promoted if those who investigate and report their findings and opinions can do so with a degree of confidence that the dispute will not be exacerbated, and hence the welfare of the child imperilled, by the disclosure of material which may arouse resentment. Secondly, where the child has made allegations or expressed wishes to the author of the report, there may be circumstances where full disclosure may put at risk the welfare of the child: including, in this term its physical and psychological security. For these and other reasons adoption has traditionally been regarded as unique, or nearly so, in the degree of confidentiality maintained, and the practical reasons for making sure that disclosure does not create unnecessary risk have been given statutory reinforcement by section 1 of the Children Act 1989, with its insistence that, in determining questions with respect to its upbringing the welfare of the child shall be the court's paramount consideration.[9]These conflicting policies must be viewed in a statutory context. For many years, and indeed as regards the County Court and the Magistrates Court since the adoption jurisdiction was created in 1926, the Adoption Rules empowered by successive Adoption Acts have recognised the essentially confidential nature of proceedings for adoption. The details are unimportant, but there can be seen a progressive emphasis on this aspect of the process, so that by 1976 the High Court and County Court Adoption Rules (S.I. 1976 Nos. 1645 and 1644 respectively) were providing that the report of the guardian ad litem would be confidential; the information obtained by any person in the course of the adoption process was confidential and would not be disclosed except in prescribed circumstances; and documents relative to the proceedings would be kept in a place of special security, and would not be open to inspection or copying except as required by the Rules or statute. The present regime, embodied in the Adoption Rules 1984 (S.I. 1984 No. 265), continues the process of enlargement, by impressing confidentiality on the reports of a reporting officer, an adoption agency and a local authority (rules 5(8) and 22(5)) as well as on the report of the guardian ad litem (rule 6(11)). There has however been one significant change of direction, which I will identify after citing the rule in full:
"53. (1) All documents relating to proceedings under the Act (or under any preceding enactment relating to adoption) shall, while they are in the custody of the court, be kept in a place of special security. (2) A party who is an individual and is referred to in a confidential report supplied to the court by an adoption agency, a local authority, a reporting officer or a guardian ad litem may inspect, for the purposes of the hearing, that part of any such report which refers to him, subject to any direction given by the court that - (a) no part of one or any of the reports shall be revealed to that party, or (b) the part of one or any of the reports referring to that party shall be revealed only to that party's advisers, or (c) the whole or any other part of one or any of the reports shall be revealed to that party. "(3) Any person who obtains any information in the course of, or relating to, any proceedings mentioned in paragraph (1) shall treat that information as confidential and shall only disclose it if - (a) the disclosure is necessary for the proper exercise of his duties, or (b) the information is requested - (i) by a court or public authority (whether in Great Britain or not) having power to determine adoptions and related matters, for the purpose of the discharge of its duties in that behalf, or (ii) by the Registrar General, or a person authorised in writing by him, where the information requested relates only to the identity of any adoption agency which made the arrangements for placing the child for adoption in the actual custody of the applicants, and of any local authority which was notified of the applicant's intention to apply for an adoption order in respect of the child, or (iii) by a person who is authorised in writing by the Secretary of State to obtain the information for the purposes of research, "(4) Save as required or authorised by a provision of any enactment or of these rules or with the leave of the court, no document or order held by or lodged with the court in proceedings under the Act (or under any previous enactment relating to adoption) shall be open to inspection by any person, and no copy of any such document or order, or of an extract from any such document or order, shall be taken by or issued to any person."
[10]This rule differs from its predecessors in the important respect that rule 53(2) is new For the first time the trend towards non-disclosure is qualified by giving a party referred to in a document a specific entitlement to see the relevant part, subject itself to a qualification in the shape of a judicial discretion to direct that disclosure shall not be made.[11]The rule in its present form therefore reflects the tension between the two principles to which I have referred, but leaves it to be resolved by the court according to the circumstances of the individual case The question raised by the present appeal is how the court should set about its task[12]The approach of the county court judge can readily be seen from the material pan of his brief extempore judgment After quoting rule 53 he said "Mrs Mowbray's report is very helpfully put into sections and Mr McFarlane for the guardian today accepts that the substantial part of it is something which can be disclosed to the parties and there is not issue about the substantial part of it Sections 11 and 13 set out Mrs Mowbray's findings and her conclusions about the two boys wishes and feelings, that is section 11 for 'R's' wishes and feelings and section 13 'S's' and objection is taken to discussing those. I think rightly and I am not going to order that they should be disclosed What the children individually have said to Mrs Mowbray was, first of all in the understanding that they were speaking to her in confidence and that she was their spokesman to the court and the report was for the court, and more recently she has been to see them again and told them that it is possible that the judge might order that what they told her might have to be disclosed to everybody and I have read what they have said about that and I think it carries a good deal of weight Having read the papers generally in this case and what is said about the mother. I think there is some risk that the mother might behave in an unfortunate way if she did read those sections I have satisfied myself that there is nothing in those sections which, in the interests of justice, she should see to defend this case or present her case in opposition to it My first instinct really was to say since there is nothing particularly new or surprising in the sections perhaps in the interests of full and fair disclosure, full discovery should prevail, but 1 am satisfied that that is not the right test to apply in these son of proceedings where I am looking at a guardian ad litem's report "[13]I pause to note the judge's account of what passed between the guardian ad litem and the children on the subject of confidentiality It appears that some misunderstanding may have crept into the proceedings, at least during the argument in the Court of Appeal, where it seems to have been assumed that the guardian ad litem had given the children an unqualified promise of confidentiality and that this should be weighed in the scale against the disclosure of any pan of her report. An undertaking would of course have been quite inappropriate, since the guardian has no power to circumscribe the discretion of the judge. It was however agreed before the House that no such undertaking was given, and the judgments in the courts below should be read with this in mind.[14]The leading judgment in the Court of Appeal [1995] 1 W.L.R. 356 was delivered by Butler-Sloss L.J. After setting out the facts, and quoting rule 53(2), her Ladyship drew attention to the contrast with rule 4.23 of the Family Proceedings Rules (S.I. 1991 No. 1247) which provides that documents should not be disclosed to anyone other than the parties, legal representatives, guardian ad litem. Legal Aid Board or welfare officer without leave of the judge or district judge, and added that the report of a welfare officer or guardian ad litem in family proceedings is seldom withheld from the parties. The judgment continued, at pp. 359-360:
"Mr. Hess, for the mother, in his excellent submissions to us, argued that prior to the Adoption Rules 1984 there was a presumption that the guardian's report was confidential and that the onus was on the party seeking its disclosure to show good reason. He has suggested that the effect of rule 53(2) is to remove the onus of asserting the disclosure from the applicant and favours disclosure. I do not read the rule in that way. In my judgment the onus remains upon the applicant to prove his case. As Steyn L.J. said during argument, the applicant still runs the risk of non-persuasion. "
Mr. Hess accepted that the decision to refuse to disclose the sections of the report was an exercise of judicial discretion but sought to persuade us that the judge had applied the wrong test. The judge held that the promise to the children by the guardian should be honoured taking into account why they did not want their views revealed to their mother and also held that he had some concern as to the reaction and behaviour of the mother if she were to read the two sections. Further he decided that there was nothing new or surprising in the sections. Mr. Hess argued that the correct test was that set out by Lord Evershed in In re K. (Infants) [1965] A.C. 201, 219: 'the judge must in the first place be well satisfied that the confidential information to which he proposes to pay regard is in truth reliable. ... In the second place the judge must plainly have in mind that if (as in the present case) information is withheld from a parent, he or she will or may go from the court with a sense of grievance which may well be to the real disadvantage of the infant. It must therefore follow that a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant might otherwise ensue.' "[15]The judgment continued with an extensive review of the authorities, culminating as follows, at pp. 361-362:
"The decisions in In re P.A. [1971] 1 W.L.R. 1530 and In re M. [1973] Q.B 108 do not in my judgment import the test propounded by Lord Evershed into the sphere of confidential reports in adoption applications. Lord Denning M.R. in In re P.A. did not advert to the test to be applied in adoption and the judgments in In re M. did not refer to Lord Evershed's test nor did they in any way exclude necessary confidentiality. Unnecessary secrecy and the importance of giving the natural parents the fullest opportunity to meet the allegations made against them were in my view uppermost in the judgments to which I have referred. In any event in In re S. (A Minor) (Adoption) [1993] 2 F.L.R. 204 this court considered the confidentiality of the report made under Schedule 2 to the Adoption Rules 1984 by the local authority in its capacity as an adoption agency. There was a dispute as to whether information about the physical condition of the proposed adoptive father should be disclosed to the natural mother. This court allowed the appeal against the decision of the judge to disclose the information. J said [1993] 2 F.L.R. 204, 207: 'Adoption is a most unusual if not unique form of litigation. It is. to my knowledge, the only proceedings where all the information collected for the case is confidential until it is disclosed. Mr. Singer [for the local authority] has pointed out the emphasis upon confidentiality not only in the Adoption Act but particularly in the Adoption Rules. Rule 14 makes the adoption confidential by the application for a serial number and rule 23(3) makes provision for the confidentiality of the prospective adopters at the hearing. By rule 22(5), the Schedule 2 report of the adoption agency is confidential. The report of the guardian at litem is confidential (rules 6(11). 18(7)). Rule 53 requires the court to keep all the documents relating to the adoption proceedings in a place of special security. Consequently, unlike other proceedings, the file is not open to inspection to other parties to the application.' "
[16]And I continued at p. 210 There should not be unnecessary secrecy (see In re M. (An Infant) (Adoption: Parental Consent) [1973] 1 Q.B. 108), but it is a question of balancing the provision of information against the risk to the child of identification of his placement and destabilisation of his future home.' "In the present case the judge applied the test to which I referred in the passage above. That test is in my view entirely consistent with the plain words of rule 53(2), which governs the disclosure of documents in adoption applications. It is not incompatible with the ratio decidendi in In re P.A. [1971] 1 W.L.R. 1530 and In re M. [1973] Q.B. 108. "Mr. Hess had a second limb to his argument, the distinction to be drawn between a confidential serial number adoption where the natural parents had no knowledge of the prospective adopters and the stepparent adoption. He argued that in the present case the mother knew the other parties and where they lived and confidentiality was not appropriate. In the step-parent adoption the analogy and parallel with the Children Act 1989 case was very close and Sachs L.J.'s approach should apply. I can see no reason to draw a distinction not drawn by rule 53(2). It is a matter for the judge of the first instance seised of the case to decide in the exercise of his discretion what evidence in any of the reports, whether from the adoption agency by Schedule 2 or from the guardian ad litem or any other evidence should or should not be disclosed to all or any of the parties. It is only if the judge erred in his approach to the decision or is otherwise plainly wrong in the decision to which he came that the appellant court should intervene. In the present case the judge had ample evidence upon which to assess the risk to the children of disclosure which in his judgment outweighed the advantages to the mother of being allowed to see the material withheld from her. There is no ground upon which this court should interfere with his decision or allow the appeal."[17]This being the state of the proceedings I turn to consider how. assuming for the moment that there is no decided case which gives a direct answer, the conflict between the two opposing policies can be minimised -although not completely reconciled, since there must be cases where there are serious arguments both ways, and one policy must take precedence over the other.[18]For my part I have no hesitation in saying that a strong presumption in favour of disclosing to a party any material relating to him or her is the point at which the judge should start. It is true, as frequently emphasised, that the requirements of natural justice are not invariable, and that circumstances must alter cases. Nevertheless the opportunity to know about and respond to adverse materials is at the heart of a fair hearing. Adoption is an unusual process, but it calls for fairness as much as any other, and indeed with special intensity, for the reasons already given. Rule 53(2) strongly reinforces this opinion since it is a formal recognition that the confidential nature of the adoption process must not be carried to extremes.[19]Equally, however, there must be some limit to the duty of disclosure, as rule 53(2) itself makes clear. No formula can be stated which will answer every case, the more so since the factors which may exceptionally speak against disclosure may be quite different from those involved in the present case, and other interests may be at risk besides those of the child. Plainly, where it is suggested that disclosure may harm the child the court will take the matter very seriously, but it should look closely at both the degree of likelihood that harm will occur, and the gravity of the harm if it does in fact occur To say that harm must be certain would in my opinion pitch the test too high, since future events cannot be predicted with complete confidence, but a powerful combination of likelihood and seriousness of harm will be required before the requirements for a fair trial can be overridden[20]To this proposition I would add two riders First, I do not think it helpful to approach the decision by reference to burden of proof This conception is apposite for the assessment of evidence on a disputed question of fact, but here the facts material to the exercise of the discretion under rule 53(2) are all known, what is in issue is whether there is sufficient in them to justify the exceptional exercise of the discretion to withhold disclosure[21]Secondly, I feel no doubt that in cases of real uncertainty the court may legitimately take into account the significance to the application for adoption of freeing the information which it is sought to withhold If the material is unlikely to carry great weight in the decision the pressure to reveal it, so that it can be answered, is correspondingly less But this requires caution, however logical it may be, for in the atmosphere of rancour and suspicion which may pervade a contested adoption an assurance from the court that the material is innocuous may not be the same as seeing for oneself[22]I now turn to see how this conclusion sits with the decided cases Of these, the earliest and the most important is the decision of this House in In re K (Infants) [1965] A C 201. This requires careful study, being the foundation of the argument for the mother on the present appeal, and also because a short passage in the speech of Lord Evershed has been called up in several subsequent judgments The mother of two children applied by originating summons in the Chancery Division that the children should be made wards of court, with ancillary orders regarding custody, care and control and access In the course of the proceedings the Official Solicitor rendered to the court two statements, to each of which were annexed confidential reports and in one instance some medical reports The statements were disclosed to the parents but not the annexures It was the view of the judge and also of the Official Solicitor that the disclosure of these reports would be seriously harmful to the children In these circumstances Ungoed-Thomas J decided neither to disregard them entirely in reaching his conclusion nor to permit them to be disclosed to the mother in full The mother appealed, and was successful The Court of Appeal held that parties in wardship proceedings were entitled as of right to see the annexures to the statement of the Official Solicitor On further appeal this House allowed the appeal and remitted the matter to a different judge of the Chancery Division The formal order of the House was concerned simply with the remission It contained no declaration or other guidance on the principle to be applied[23]As already mentioned the importance of this case lies principally in the subsequent influence of a short passage in the speech of Lord Evershed In order to understand this properly, it is necessary to give a longer extract of the speech (at p 219), emphasising the words relied upon "It follows, therefore, in my opinion, that there cannot be in circumstances such as exist or as are suggested in the present case, an absolute right on the mother's part to see the report of the Official Solicitor On the other hand, I have no doubt that the judge must give very great weight indeed to the principle that he should not base a conclusion adverse to a proper party to the proceedings (and particularly a parent) upon information which that party has not seen and has had no opportunity of challenging or contesting When a situation arises such as has in the present case arisen, there may well indeed have to be. in the language of Russell L J , a 'balancing' of the generally accepted right of a properly interested party, particularly a parent to disclosure of information submitted to the judge upon which he proposes in some measure to base his conclusion (on the one hand) and the paramount interest of the ward of court (on the other hand) It may. however, be that, in such a situation, the latter consideration upon the balance should outweigh the former But in reaching such a conclusion the judge must in the first place be well satisfied that the confidential information to which he proposes to pay regard is in truth reliable When, therefore, the information is derived from some statement attributed to the ward, he should (I would say) see the ward himself And I add that in cases such as the present where (it may be) the information is derived from the doctor, the judge will bear in mind that upon many matters medical opinion is apt to differ In the second place the judge must plainly have in mind that if (as in the present case) information is withheld from a parent, he or she will or may go from the court with a sense of grievance which may well be to the real disadvantage of the infant It must therefore follow that a judge should not reach such a conclusion without the relevant disclosure to the party or parent save in rare cases and where he is fully satisfied judicially that real harm to the infant must otherwise ensue "[24]Later discussion has taken the essence of Lord Evershed's opinion to be contained in the injunction that the judge must be " satisfied that real harm must otherwise ensue By saying that disclosure can be withheld only if the child must suffer real harm Lord Evershed was setting the highest possible standard, and certainly one which is far higher than the one which the judge applied in the present case For my part I am unable to accept either that Lord Evershed intended these words to be read literally as setting a standard applicable in every wardship case, or that they can have a decisive bearing on proceedings for adoption, where governed by rules which were not in existence when In re K was decided[25]In the first place the appeal came before the House in an unusual condition because almost none of the facts were known It is therefore not surprising that their Lordships declined to prescribe a rule of general application. Thus in a passage immediately following the one principally relied upon. Lord Evershed said this, at p. 220:
"My Lords, I am well aware that this statement of my view will be regarded as extremely imprecise, though I hope in the end of all in this case it may not be unhelpful. But for my part I find it impossible to arrive at any greater definition and therefore prefer not to accept the amended formulation of his case by Mr. Foster to the effect that the withholding of information by the judge must depend upon his view that it is 'imperative' or 'necessary' so to do in order inevitably to avoid causing grave mental or physical harm to the ward. I am concerned only to express my view that though the judge must indeed attach very great weight to the principle I have stated, there can be no unqualified right on the part of a parent or other proper party to disclosure of information supplied to the judge unless the judge wholly rejects such information in arriving at his conclusion."
[26]Similarly. Lord Jenkins observed, at p. 232 F, that "... any attempt to formulate general pronouncements applicable in all cases will be likely to create more difficulties than it solves."[27]Next, it is important to keep in view the narrow confines of the issue before the House. For the mother it was contended that full disclosure should always be made. In response the Official Solicitor did not argue for a broad principle of secrecy; his contention, as reported, was to the effect (at p. 205 B) that:
"... the judge may withhold from the parties information available to him which it is, in his view, imperative or necessary to withhold in the interests of the ward, because to disclose it would inevitably cause grave mental or physical harm to the ward."
[28]Although the Official Solicitor prevailed on the appeal, in the sense that the unqualified duty propounded for the mother was rejected, it is I believe clear that the House did not underwrite the very close limits on the power to withhold disclosure which was all that the Official Solicitor had sought to sustain.[29]Perhaps more importantly, the principles to which the individual members of the House gave effect can be seen to differ substantially from the one which is now attributed to Lord Evershed. Thus, Lord Hodson, who at an early stage of his speech rehearsed the argument for the Official Solicitor which I have quoted, later propounded, at p. 235 C, an altogether less restrictive view of the right, as follows:
"In the last resort the welfare of the child must dominate and in those rare cases, of which this is one. where the judge has found himself unable to disregard a secret and unverified report yet has thought the report must not in the child's interest be shown to the parents, his view must prevail."
[30]The speech of Lord Devlin is also in much more qualified terms than the indication of Lord Evershed that disclosure can be withheld only if real harm to the child must ensue.[31]There is another reason why the few words extracted from the speech of Lord Evershed cannot determine the present appeal, namely, that they were spoken in the context of a dispute about wardship. The House was at pains to emphasise the very special nature of this jurisdiction, and in particular that it was the practice of the judge to see the child and perhaps also the parents in private, and that in ordinary circumstances no final order was ever made. Such a procedure is quite different from that now prevailing in adoption cases. Indeed Lord Evershed, Lord Jenkins and Lord Hodson (pp. 217, 227 and 234, respectively), expressly rejected the practice in adoption as furnishing any useful analogy.[32]Finally, it is important to bear in mind the very different substance of the issue considered in In re K. [1965] A.C. 201 from that which is now before the House. As shown by the short passage already quoted from the speech of Lord Hodson the dispute was not about the confidentiality of documents, but about the desirability of disclosing to a party information of whatever nature which the judge might take into account in forming an adverse conclusion. A similar point was made by Lord Devlin, at p. 237 of the report, with the rider that it was not seriously argued that a special privilege attached to the reports of the Official Solicitor; and indeed the House as a whole deprecated the making of confidential reports. The position has long been different in adoption, where the Rules have expressly characterised as confidential the report of the guardian ad litem, and latterly also the reports of the reporting officer, the local authority and the adoption agency. The elaborate regime created by rule 53(2) may in practice lead to results which are little different from those contemplated by the speeches in In re K., but the very marked contrast between the new formal structure of the rule and the traditional practices of wardship which influenced their Lordships in In re K. call for great caution in the transfer of statements, even of high authority, from one context to another. It is understandable that in deference to the authority of Lord Evershed this transfer should have been made, and that through repetition it should have come to be treated as part of the law of adoption. Nevertheless, the task here is to give effect to rule 53, and although the speeches in In re K. contain valuable observations on the problems which often arise in cases concerning the welfare and future of children, and which have arisen here, they cannot in my judgment be relied upon to furnish an immediate answer to the problem now before the House.[33]During the thirty years which have elapsed since In re K. several thoughtful judgments have been delivered on the subject of confidentiality in family proceedings. Few of these were concerned with adoption, and a considerable proportion took In re K. as a starting point without. I venture to suggest, necessarily reproducing in practice the severe test attributed to Lord Evershed. The House was rightly taken in depth into these authorities. It is without disrespect that I do not follow the same course, for the purpose of the present appeal is to give the House an opportunity to offer guidance on the manner in which the discretion under rule 53(2) should now be exercised. I do not think that this object will be advanced by a review of the authorities which would necessarily be long and detailed, if it were to be embarked upon at all. I do however wish to call up one authority. In In re B. (A Minor) (Disclosure of Evidence) [1993] Fam. 142 the subject matter was an affidavit made by the mother of the child in question to the effect that the father had behaved improperly towards the step-sister of that child. The judge ordered that the affidavit should be disclosed to the father, although recognising that the disclosure might cause harm to the children, and the Court of Appeal dismissed the mother's appeal. This was one of the several cases in which the courts have understandably treated themselves as bound by the principle established in In re K. whatever precisely that might be and to that extent it does not greatly advance the enquiry. There is, however, to be found at p. 155 of the report an account of In re K. by Glidewell L.J. which I regard as very much in point:
"In my opinion, therefore, a court which is considering an application for an order under sections 8 and 10 of the Children Act 1989 has the power, in its discretion, to receive and act on evidence adduced by one party, or emanating from a welfare officer, which is not disclosed to the other party. That power is, however, only to be exercised in most exceptional circumstances, in accordance with the principles laid down in In re K. (Infants) [1965] A.C. 201. Before ordering that any such evidence shall not be disclosed to another party, the court will have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it."
[34]The circumstances of In re B. differ from the present since, as is evident from the passage quoted, the case was concerned with proceedings under the Act of 1989. rather than with adoption, so that section 53(2) of the Adoption Rules did not apply. Nevertheless, the statement of principle by the Lord Justice accords substantially with that which I have proposed.[35]Next, I must refer to certain decisions of the European Commission and Court of Human Rights, and of the Committee of Ministers, namely Hendriks v. Netherlands (1983) 5 E.H.H.R. 223, W v. United Kingdom (1988) 10 EHRR 29 . and case of McMichael v. United Kingdom (51/1993/446/525). 24 February 1995. On the view which I have formed of the English law there is no need to engage the important general question which would have arisen if the conclusions impelled by the English legislation and decided cases had differed in important respects from the jurisprudence of the European tribunals. The language of the European Convention on Human Rights naturally causes the discussion to be couched in terms of rights, whilst I would prefer a different vocabulary, but in substance the principles to be derived from that jurisprudence are entirely consistent with those which I propose. In particular, the conflation in McMichael of the remedies under Articles 6 and 8 of the Convention shows that full disclosure will usually advance the interests both of a fair trial and of the parties to the parental relationship. On the other hand, there is nothing in these decisions to suggest that disclosure can never be properly withheld if the interests of the child so demand; and it is significant that in McMichael. a case where the reports were kept from the parents as a matter of general practice in Scotland, the Court expressly referred in paragraph 88 of its judgment to the fact that no special reasons for withholding them had been advanced.[36]I return to the present case. The passage from his judgment previously quoted shows the county court judge approaching the question of disclosure in the manner of a free discretion. Having now had the advantage of much more extensive argument than could have been accommodated in his busy list I am satisfied that the judge erred in giving no weight to the strong presumption in favour of disclosure which, for the reasons given, I believe should prevail in adoption proceedings. It is for this reason that I have concurred in the order allowing the appeal so that the discretion can be exercised afresh in the light of the principles which I understand to be agreeable to your Lordships.[37]Having reached this conclusion I do not think it helpful to engage in minute analysis of the judgment given in the Court of Appeal, except to say that I agree with its principal conclusion, that the few words often isolated from the speech of Lord Evershed in In re K. should not be applied when considering disclosure in adoption proceedings. The presumption in favour of disclosure is strong indeed, but not so strong that it can be withheld only it the judge is satisfied that real harm to the child must otherwise ensue.[38]There remains the question of the order which should now be made. The House was invited to read sections 11 and 13 of the guardian's report and to exercise the discretion itself. In my judgment this would be unwise. An informed exercise of the discretion requires a full grasp of all the circumstances, and a feeling for the shape of the case which the House has had no opportunity, or reason, to achieve in the course of deciding what is essentially a question of principle. The better course will be to remit the matter to Judge McNaught so that he can reconsider his decision in the light of the principles which the House will state. It may be that his new ruling will be the same as the old. but whatever form it takes I am confident that it will result from a complete!) fresh appraisal of all the relevant considerations.[39]In conclusion I should mention two further points which arose in the course of argument. The first concerns the use of the word "confidential" in various of the Rules to describe the reports which are the subject of rule 53(2). The House was urged to explain the meaning of this word, for the benefit of those who have to compile these sensitive documents. Whilst I appreciate the reasons for this suggestion I would decline, for although the word is pan of the background to the dispute it plays no part in the application of the rule 53(2). To give an accurate exposition of confidentiality at large would require a much more wide-ranging survey of the law and practice than has been necessary for a decision on the narrow issue raised by the appeal, and cannot in my opinion safely be attempted in the abstract.[40]Secondly, there has been mention of the fact that although family proceedings and adoption proceedings are for obvious reasons of convenience often heard concurrently, the statutory rules governing the confidentiality of information and documents are not precisely the same. Nevertheless, it is difficult to conceive of circumstances where this will make a difference. In those exceptional cases where disclosure under rule 53(2) is withheld on the ground of risk to the child I find it hard to imagine that the court will find it proper to order disclosure for the purposes of the other proceedings.[41]At the close of thoughtful submissions to which the House is much indebted counsel together invited your Lordships to state the principles in terms to which courts might in future have recourse without the need to analyse an ever-increasing number of judgments, not all of them easy to reconcile. In response. I tender the following propositions, with which I understand all of your Lordships are in accord.[42]It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.[43]When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.[44]It if 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.[45]If the court is satisfied that the interests of the child point towards nondisclosure, 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.[46]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 non-disclosure only when the case for doing so is compelling. LORD LLOYD OF BERWICK My Lords.[47]I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill, and for the reasons which he gives, I too. would allow this appeal. LORD NICHOLLS OF BIRKENHEAD My Lords.[48]I agree with the reasons given my noble and learned friend Lord Mustill for allowing this appeal.