Law Report: Court power to conceal child evidence: Re M (Minors: Disclosure of Evidence) - Court of Appeal (Lord Justice Butler-Sloss and Sir John Megaw), 3 February 1994

The court's power to withhold confidential evidence from a party to proceedings concerning children should be used only in exceptional cases where real harm would otherwise ensue to the child.

The Court of Appeal held that Judge Platt, sitting at Edmonton County Court on 17 November 1993, had erred in refusing to disclose a confidential addendum to a court welfare officer's report on two children, aged 13 and 9, to either of their parents; but the court upheld, for different reasons, the judge's decision granting residence to the father and ordering the mother to leave the family home.

David Boyd (David Cohen & Co) for the mother; Roger Hayward-Smith QC (Barker Gooch & Swailes) for the father.

LORD JUSTICE BUTLER-SLOSS said there was no doubt the court in proceedings concerning children had the power to order evidence not to be disclosed to a party, if disclosure would be so detrimental to the child's welfare as to outweigh the normal requirements of a fair trial. But it was an exceptional procedure to be invoked only in accordance with principles laid down in Official Solicitor v K (1965) AC 201 at p 219. The judge must be 'satisfied that the confidential information . . . is in truth reliable', and that 'real harm to the infant must otherwise ensue'.

To treat evidence as confidential and not to be disclosed to the parties created, as in this case, major difficulties for the parties in the conduct of their cases. A judge should only rarely advise this course to a court welfare officer, who frequently had the difficult task of reproducing the wishes of children without exacerbating family disharmony.

Here the children's views and wishes were already in the public domain and the judge misdirected himself in exercising his discretion as he did. Moreover, he ought to have stated in his judgment whether or not he had taken the undisclosed evidence into account in reaching his decision.

SIR JOHN MEGAW agreed.