A Mother v A Father & Ors

Judgment

Lord Justice Wilson:

In highly unusual circumstances a mother appeals from a direction made in care proceedings by Mr Justice Hedley, sitting in the High Court, Family Division, Principal Registry, on 3 July 2009, that certain evidence referable to her which has been filed in the proceedings should be disclosed to another party thereto, namely the father, who is also her husband and with whom she presently cohabits. In principle her case is that the evidence is of a supremely sensitive character which, if disclosed to the father, might well have the most serious adverse consequences both for her, for certain female members of her family and, indeed, whether directly or indirectly through herself, for the child who is the subject of the proceedings. But her case before the judge, as also before this court, was cast on a narrower basis, namely that, before it could properly determine the likelihood and severity of the allegedly adverse consequences of disclosure, the court should permit completion of a professional risk assessment in relation to them.

In the event, by a reserved judgment handed down on 3 July 2009 following a hearing on 10 June, the judge made a robust decision not to permit completion of the risk assessment but rather, then and there, to permit disclosure of the evidence to the father. As I will explain, the evidence was already in the hands of the father’s solicitors and counsel; and so the judge gave them liberty to disclose it to the father no earlier than 17 July. Although he refused the mother’s application for permission to appeal, the judge’s direction for a stay of a fortnight in the disclosure of the evidence to the father, designed by him to enable the parties to discuss the optimum method of effecting disclosure, enabled the mother to approach this court for a further stay of execution pending appeal. She duly obtained an extension of the stay, with the result that the father’s lawyers have not yet been enabled, and have not, disclosed the evidence to the father.

In the light of the unusual nature of the application which he had determined, the judge directed that, in a form which he considered properly to reflect the need for anonymity, his judgment might be made public and reported. It is thus in the public domain under neutral citation number [2009] EWHC 1574 (Fam) and is already now noted in Vol. 39 (2009) Family Law at 926. Naturally the judgment identifies the evidence around the disclosure of which the dispu