Custody Cases - What Has to Be Disclosed

In a recent case, a local authority claimed that it was proper for documents relating to a father’s possible sexual misconduct to be disclosed to experts who had been instructed in the course of care proceedings. The council’s argument was that whether the allegations were false or not, they represented significant events in the history of the family’s life and should therefore be considered. The parents of the child who was the subject of the proceedings opposed the release of the documents, claiming that the records contained allegations which had never been subject to criminal or family proceedings, were never proved and had not resulted in any charges.

The leading authority on the disclosure of documents in children’s cases is the Court of Appeal decision Re R (Care: Disclosure: Nature of Proceedings). The conclusions drawn in that case were that in general the disclosure of documents is inappropriate in such cases, but the Court retains the power to order ‘specific discovery’ (i.e. disclosure of specified documents). Unless the documents to be included are of real importance and relevance, they are not to be disclosed. The onus is on the party wanting to include records to prove that they are a necessary factor in their case.

Applying these principles, the parents’ appeal was allowed. The Court held that to allow the inclusion of the records would not be in the interests of the child. Also, the local authority could not introduce material regarding allegations that it had not pursued or proved at an earlier stage. If the material had already been deemed irrelevant to the judge’s task, it could not justifiably be regarded as needing to be examined by the experts.

In the Court’s view, it could harm relations between the local authority and the parents were the local authority to include and send to the experts any information that would ultimately be seen as unjust and prejudicial.