Law Report: Father should have been given evidence: Re B (a minor). Court of Appeal (Lord Justice Glidewell, Lord Justice Balcombe and Lord Justice Boreham). 16 July 1992.

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In proceedings affecting the welfare of children, the court had power, only to be exercised in exceptional circumstances, to order that evidence filed by one party should not be disclosed to the other party.

The Court of Appeal dismissed an appeal by a mother from an order made by Judge Wilson in Northampton County Court discharging an ex parte order that the mother should not disclose to the father her affidavit in connection with her application that the father should not have further contact with his son, T.

The mother and father were divorced in 1991. They had a son, T, now aged 12. The mother had a daughter, L, now aged 15, by her previous marriage. The father had no access to L, but had reasonable access to T. In March 1992 the mother was granted, on an ex parte hearing under section 10 of the Children Act 1989, orders revoking the father's access and that no part of the evidence produced to the court be disclosed to the father. On the father's application to discharge the orders, Judge Wilson concluded that he was bound by the Court of Appeal's decision in Re K (infants) (1963) Ch 381 to hold that the father was entitled to see the mother's affidavit. The mother appealed.

Jeremy Posnansky, who did not appear below (Toller Hales & Collcutt, Wellingbrough) for the mother; Richard Vain (Woolley & Weston, Welwyn Garden City) for the father.

LORD JUSTICE GLIDEWELL said that the judge had not been aware that the House of Lords had allowed the Official Solicitor's appeal in Re K so the basis of his decision was invalidated.

In Official Solicitor v K (1965) AC 210 the application of the principle of treating the child's welfare as the paramount consideration was the basis of the House of Lords' decision that a parent was not entitled as of right to disclosure of the Official Solicitor's confidential reports and the medical report.

The principles laid down in Official Solicitor v K applied to cases relating to children who were not wards of court: see Re C (a minor) (1991) 2 FLR 438 where the Court of Appeal held that it was permissible for a judge, in the exercise of his discretion and acting in the paramount interests of the child, to see a court welfare officer privately during a trial, and that there was no absolute objection to the receipt of a confidential report, but that the judge should only adopt either of those courses in exceptional circumstances.

Therefore, a court which was considering an application for an order under sections 8 and 10 of the Children Act 1989 had the power, in its discretion, to receive and act on evidence adduced by one party, or emanating from a welfare officer, which was not disclosed to the other party.

Before ordering that any such evidence be not disclosed to another party, the court would have to consider it in order to satisfy itself that the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirement for a fair trial that all evidence must be disclosed.

The mother's affidavit contained information that L had told a friend that the father had sexually abused her and that she was afraid that if he learnt she had made this complaint, he would kill her. T was aware of the general nature of L's complaints and her fears. The mother terminated T's access to the father to ensure that T did not inadvertently tell his father of L's complaints.

The order that the mother's affidavit should not be disclosed was sought for the protection of L, and it was T's welfare which was the paramount consideration when considering whether he should continue to have access to his father. Even if it were suggested that T might be harmed, for example by being put in a position where he had to try to conceal L's allegations, that possibility had to be weighed against the grave injustice to the father which resulted from non-disclosure.

L's allegations were extremely serious. It was quite wrong that the father should not know of them and be given the opportunity to deny them if they were untrue or explain them if they were true in part. The interests of justice to the father greatly outweighed any possible detriment to T. Once L had been moved to a place of safety her fear ceased to be valid reason for non-disclosure.

By the time the father's application for discharge of the order came to be heard, there was no justification for continuing it. The appeal would be dismissed.

Lord Justice Balcombe and Mr Justice Boreham agreed.