Transparency in Family Proceedings

A mother’s desperate fight to renew contact with her disabled daughter many years after her adoption has yielded important guidance from the nation’s top family judge on the balance to be struck between the principle of open justice and the need to protect children and vulnerable adults from potential harm.

The woman had been adopted at a very young age and there was no dispute that, although now an adult, she lacked capacity to make decisions for herself. Her natural mother had for many years maintained indirect contact with her and had applied to a family judge for direct contact.

In pursuit of that application, the mother had sought disclosure of various documents relating to her daughter from the relevant local authority. The judge had permitted her to see a redacted version of a clinical psychologist’s report but had refused to grant her sight of three statements from social workers that contained a wealth of private information concerning her daughter’s life since her adoption. The latter documents were disclosed to the mother’s legal representatives, but only on condition that they did not communicate their contents to their client.

On appeal to the Court of Protection, the mother’s lawyers emphasised her human rights to a fair hearing and to respect for her family life. They argued that she had been denied access to information that she required to argue her case effectively and that the judge had effectively introduced a closed material procedure in conflict with authority. However, the local authority insisted that further disclosure of information to the mother could harm her daughter’s welfare.

The President of the Family Division, Sir James Munby, acknowledged that certain limitations on open justice had long been recognised in cases involving children and that, as a matter of common sense, the same restrictions must also apply to cases involving vulnerable adults. However, he emphasised that such derogations from ordinary principles of transparency should only be permitted where absolutely necessary to achieve the welfare objective.

In allowing the mother’s appeal, Sir James said that the judge did not seem to have explored the possibility that she could be told of the social workers reports or allowed to read, but not to borrow or copy, suitably redacted copies of the same. The judge remitted the case to the family judge for further consideration of such possible courses.