03 October 2012
Family Law Specialist Duncan Ranton on Parents Accused of Child Abuse
Do parents have a right to know, if accused of Child Abuse, the nature and source of the allegation?
That was the question before the Court of Appeal recently, in the case of Re J (A Child: Disclosure)  EWCA Civ 1204.The proceedings concerned a ten-year-old girl, A. Her parents Separated in 2002, when she was only six months old. Her father, an Australian, returned home but applied for contact before he did. An order was made, and contact progressed, to the point where A was staying with her father for blocks of weeks from 2009.In March 2010, social workers contacted the mother. They informed her that a young person – identified in the proceedings as X – had made serious allegations of sexual abuse against the father. The mother was not told any detail of the allegations, and X was adamant her identity must remain a secret. The social workers did say they considered the allegations “credible”, and advised the mother not to permit A to have contact with the father.
The mother, perfectly properly, made an application to limit Contact between A and the father – who vociferously denied any wrongdoing – until the allegations were properly investigated. Shamefully, nothing much then seems to have happened with the application for over a year. Eventually, the case came before a High Court Judge in September 2011. The key issue for the court was whether the identity of X, and the nature of her allegations, should be revealed. The Judge, Mr Justice Peter Jackson, described the case as “highly unusual”. He decided on balance that X’s identity should not be disclosed. This was because she was herself a deeply disturbed individual, with various mental and physical problems. He said it was troubling indeed to deny a parent contact with a child on the basis of an unspecified allegation from an anonymous source. Nevertheless, he decided that X’s vulnerable state meant there were “compelling circumstances” such that her identity should remain a secret from A’s parents.
A had her own legal team in the proceedings, and they appealed Mr Justice Peter Jackson’s decision. The Court of Appeal gave its ruling towards the end of September. The three Court of Appeal Judges – Lords Justice Thorpe and McFarlane and Lady Justice Hallett – disagreed with the High Court Judge. Giving the lead Judgment, McFarlane LJ described it as a “difficult and hard decision … made so by the fact that the stakes are high on both sides of the equation. The description of X’s mental and physical health difficulties are towards the top end of the spectrum. The issue for A and her Family arising from what X has said are similarly of great magnitude”. In deciding where the balance was to be struck, however, the Court of Appeal favoured disclosure: McFarlane LJ said there was a high priority to be put on both parents having the opportunity to see and respond to the allegations. “I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and the records of the substance of her sexual abuse allegations to the mother (and) the father”. Each case is decided on its own merits. This sounds like a “get out of jail free card” for legal advisers dealing with cases about Children. Nevertheless, the principle is a sound one, and applies equally to issues of disclosure such as arose in this case. What the Court of Appeal Judgment demonstrates is that there is a strong presumption in favour of disclosure. Circumstances will need to be unusual indeed for that presumption to be outweighed. This must be right, for how else can parents accused of such serious abuse of their children begin to respond to the allegation?
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