EWCA Civ 241: Balancing Child Welfare and Disclosure Rights in Family Proceedings

Citation: [2024] EWCA Civ 241
Judgment on


The case of EWCA Civ 241 presents significant considerations for the balance between disclosure of evidence in family proceedings and the protection of children’s welfare. The judgment grapples with the paramountcy of child welfare, the right to fair trial (Article 6), and right to respect for private and family life (Article 8) arising under the European Convention on Human Rights.

Key Facts

The appeal originated from family proceedings concerning the welfare of two children, with the primary focus being the appropriate extent of their father’s contact. A mental health nurse’s report, which included sensitive statements by the younger child, was withheld from the father on the basis that it might cause him to act harmfully toward the child or himself if disclosed. The trial judge upheld non-disclosure due to a perceived risk of harm to the child and potential for the father’s self-centered behavior to manifest detrimentally.

The legal principles in this case are founded in established jurisprudence and statutory frameworks governing the conduct of family law proceedings in the UK:

  1. Relevance of Evidence: Relevant evidence is typically to be disclosed to all parties in family proceedings, ensuring that judicial decisions are made on a full and fair basis. In this instance, the information the father sought was relevant to the contact arrangements and his understanding of the child’s concerns.

  2. Risk of Harm to a Child: In line with Re D (Minors) (Adoption Reports: Confidentiality), non-disclosure is an exception rather than a rule, and a court must rigorously assess the risk and gravity of harm to a child from disclosing particular information.

  3. Balancing Interests and Rights: The right to a fair hearing (Article 6) and the right to respect for private and family life (Article 8) were crucial in this case. Both the child’s and the father’s Article 8 rights had to be carefully weighed against one another.

  4. Proportionality and Rigorous Evaluation: The court must ensure that any restriction on disclosure is strictly necessary and proportionate, considering all available protective measures and the impact on a litigant’s ability to participate meaningfully in proceedings.

  5. Remedies and Safeguards: Where non-disclosure is ordered, the court must explore whether safeguards could be put in place to mitigate potential harm, ensuring the least restrictive measure is used.


The Court of Appeal concluded that the trial judge’s decision for non-disclosure was not adequately substantiated. It determined that non-disclosure significantly disadvantaged the father’s involvement in the psychological assessment process and the broader fairness in the proceedings.

The imposition of the trial judge’s order did not balance the legal principles properly, particularly given the Guardian’s advice that disclosure should resume and the absence of a truly compelling case to override the father’s rights.

The appeal was allowed, setting aside the non-disclosure order and mandating disclosure under strict stipulations designed to minimize the risk to the child.


In this case, the Court of Appeal synoptically yet decisively sets a legal precedent that underscores the importance of disclosure in ensuring a fair trial, while also being acutely sensitive to the child’s welfare considerations. The judgment clarifies that non-disclosure must be justified robustly, be the least invasive option available, and cannot be open-ended but requires timely review, especially when significant rights are at stake. The court’s meticulous analysis reiterates the necessity of a balanced and systematic approach to the adjudication of non-disclosure applications within family law proceedings.