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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1001
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ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
The Hon Mr Justice MacDonald
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF H (A CHILD) (DISCLOSURE OF ASYLUM DOCUMENTS)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BAKER
LORD JUSTICE PHILLIPS
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|RH (by his children's guardian)
Christopher Hames QC (instructed by Broudie Jackson Canter) for the Second Appellant mother
Edward Devereux QC and Mehvish Chaudhry (instructed by Bindmans LLP) for the First Respondent father
Michael Edwards (instructed by Cafcass Legal) for the Second Respondent child, by his children's guardian
Hearing date: 10 June 2020
Crown Copyright ©
LORD JUSTICE BAKER:
Brief summary of background
International instruments and domestic regulations
"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as result of such events, is unable or, owing to such fear, is unwilling to return to it."
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
"So far as the Refugee Convention as a whole is concerned, Parliament has legislated in section 2 of the Asylum and Immigration Act 1993, but it did not do so in terms that would give the Refugee Convention the force of statute for all purposes. It expressly limited the force given to the Refugee Convention to the Immigration Rules. The Refugee Convention also affects the lawfulness of administrative practices and procedures, because, as Lord Steyn put it in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees intervening)  2 AC 1, para 41: It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. But to give the Refugee Convention any greater force or status under our law would be to go further than section 2 requires or permits, and in my judgment this is something the court cannot do."
"The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention on 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty of the European Union and the Treaty on the Functioning of the European Union …."
"(7) It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions for third country nationals or stateless persons who ask for international protection from a Member State, where such a request is understood to be on the grounds that the person is a refugee within the meaning of Article 1(A) of the Geneva Convention.
(8) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union."
Article 22 of the Procedures Directive provides:
"For the purposes of examining individual cases, Member States shall not:
(a) directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum;
(b) obtain any information from the alleged actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependents, or the liberty and security of his/her family members still living in the country of origin."
Article 41 of the Procedures Directive obliges Member States to:
"ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law in relation to any information they obtain in the course of their work."
"refusing his application would result in him being required to go … in breach of the Geneva Convention to a country in which his life or freedom will be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."
Paragraph 339IA provides:
"For the purposes of examining individual applications for asylum:
(i) information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant, and
(ii) information shall not be obtained from the alleged actor(s) of persecution that would result in their being directly informed that an application for asylum has been made by the applicant in question and would jeopardise the physical integrity of the applicant and their dependents, or the liberty and security of their family members still living in the country of origin."
"(1) A person may apply, without notice, for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the public interest.
(2) Unless the court otherwise orders, an order of the court under paragraph (1)
(a) must not be served on any other person; and
(b) must not be open to inspection by any other person.
(3) A person who wishes to claim a right or a duty to withhold inspection of a document, or part of a document, must state in writing
(a) the right or duty claim; and(b) the grounds on which that right or duty is claimed.
(4) The statement referred to in paragraph (3) must be made to the person wishing to inspect the document.
(5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.
(6) Where the court is deciding an application under paragraph (1) or (3) it may
(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and(b) invite any person, whether or not a party, to make representations.
(7) An application under paragraph (1) or (3) must be supported by evidence.
(8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the grounds that its disclosure or inspection would damage the public interest."
The terms of the rule follow almost precisely the provision in civil proceedings in CPR 31.19.
"There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone."
The approach to be followed by a court when deciding whether confidential documents should be disclosed into proceedings has been broadly settled for many years. It was summarised by Lord Cross of Chelsea in Alfred Crompton Amusement Machines v Customs and Excise Commissioners (No.2)  AC 405 at p413:
"What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other."
"First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include "train of inquiry" points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity."
"Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant's access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary."
This approach, and in particular the passage cited above, was endorsed by this court in Re B, R and C (Children)  EWCA Civ 1825.
"22. The need for candour in the completion of an application for asylum is self-evident. But this should not be regarded as giving rise to an inevitable requirement that all information thereby disclosed must be preserved in confidence in every circumstance. Obviously, such information should not be disclosed to those who have persecuted the applicant and this consideration underlies article 22 of the Procedures Directive ….
23. As the appellant has properly accepted, there is no explicit requirement in this provision that material disclosed by an applicant for asylum should be preserved in confidence for all time and from all agencies. On the contrary, the stipulation is that it should not be disclosed to alleged actors of persecution and the injunction against its disclosure is specifically related to the process of examination of individual cases. The appellant's case had been examined and his application had been refused. The trigger for such confidentiality as article 22 provides for was simply not present.
24. The appellant is therefore obliged to argue that the need for continuing confidentiality in his case arises by implication from the overall purpose of the Directive. But neither article 22 nor article 41 provides support for that claim. Article 22 is framed for a specific purpose and in a deliberately precise way. To imply into its provisions a general duty to keep confidential all material supplied in support of an asylum application would unwarrantably enlarge its scope beyond its obvious intended purpose.
25. Article 41 provides: "Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work."
26. It is not disputed that Swedish national law does not define "the confidentiality principle" as extending to the non-disclosure of information supplied in support of an asylum application, where that application has been unsuccessful. On the contrary, the tradition of the law in that country is that information generated by such applications should enter the public domain. Article 41 cannot assist the appellant, therefore.
27. Neither of the specific provisions of the Directive that the appellant has prayed in aid supports the proposition that its overall purpose was to encourage candour by ensuring general confidentiality for information supplied in support of an application for asylum. The Directive in fact makes precise provision for the circumstances in which confidentiality should be maintained. It would therefore be clearly inconsistent with the framework of the Directive to imply a general charter of confidentiality for such material.
28. The fact, if indeed it be the fact, that material which an applicant for asylum in the United Kingdom supplied, in circumstances such as those which confronted the appellant when making his application in Sweden, would not be disclosed here, likewise cannot assist his case. The information which the Swedish authorities provided was properly and legally supplied. When the authorities in this country obtained that material, they had a legal obligation to make appropriate use of it, if, as it did, it revealed criminal activity on the appellant's part."
"confidentiality is a vital element for the working of the asylum system …. The need for those seeking asylum to have confidence that the information they provide will not be made public means that there is a compelling public interest in ensuring that this confidentiality is protected. This applies a fortiori to those granted refugee status."
Later in the judgment, Hayden J continued:
"60. Whilst it is undoubtedly correct that both F and A's Article 8 rights are engaged here and that procedural fairness is an indivisible facet of these rights, it is equally important to recognise that the duty of confidence to the claimant, in common law, also falls within the embrace of Article 8 (see Campbell v MNG Ltd  UKHL 22). More widely, this reasonable expectation of privacy is intrinsic to the operation both of the asylum system generally and the proper discharge by the UK of its obligations under the Refugee Convention, QD and ECHR. Mr Norton and Mr Payne [counsel for the Home Secretary] address this necessary analysis of the competing rights and interests in play in these terms:
"Accordingly, when considering whether to order disclosure the Court will need to consider whether disclosure would be compatible with the refugee's ECHR rights, and in particular their Article 3 and 8 rights. In addition, in considering proportionality under Article 8 the Court will need to attach particular weight to the wider powerful public interest in protecting the confidentiality of the asylum process. This is particularly so where the applicant for disclosure is the alleged persecutor. Against these considerations the Court will need to weigh, in the case of an application made by a family member, any adverse Article 6 and/or 8 impact of disclosure not being provided to the person making the application. The SSHD's position is that only where an exceptional case is established by an applicant will disclosure be necessary."
61. Whilst I accept and endorse much of this, I am not prepared to agree with the submission that 'only where an exceptional case is established by an applicant, will disclosure be necessary'. It may be that the balancing of the competing rights may lead to disclosure in only a very limited number of cases but effectively to create a presumption that disclosure should be 'exceptional' is corrosive of the integrity of the balancing exercise itself.
62. It also requires to be stated that the SSHD will frequently be better placed than the Court to conduct the balancing exercise when identifying whether or to what extent disclosure should take place."
The judgments in this case
"62. I recognise, as highlighted by Mr Devereux and Ms Chaudhry, that in R v McGeough the Supreme Court held, by reference to the terms of Council Directive 2005/85/EC, that information supplied in support of an application for asylum that has concluded does not have a general character of confidentiality. However, as I have highlighted above, some care must be taken with that decision in the context of the facts of this case.
63. In R v McGeough the Supreme Court was concerned with the effect of Swedish national law, which does not define the confidentiality principle as extending to the non-disclosure of information supplied in support of an asylum application where that application has been unsuccessful, the law in that country being that information generated by such applications should enter the public domain. Within this context, the decision in R v McGeough can be distinguished from the situation with which this court is concerned, namely the effect of domestic law on the question of confidentiality. Further, and within that context, the Supreme Court did not reach a settled conclusion on the position in this jurisdiction in circumstances where, on the evidence available to this court, information from an asylum application will not be publicly disclosed following the conclusion of that application.
64. Within this context, when considering the nature and extent of the confidentiality that attaches to documents from the mother's concluded asylum application, I am satisfied that this court must take into account the manner in which that information has been and is treated administratively in this jurisdiction. The evidence before the court demonstrates that upon making the application, the mother was given assurances of confidentiality with respect to the information she provided to the Secretary of State in support of her application for asylum, namely that the information she provided would be treated as confidential and will only be disclosed where there is a requirement of the law to do so. Further, there is nothing in the evidence before the court to demonstrate that, upon an asylum claim being successful, the information in support of that claim is made public or otherwise treated in a manner that suggests the assurances of confidentiality given upon application cease to operate. Indeed, all the information before the court suggests that the confidentiality of such information continues to be jealously guarded by the Secretary of State, in particular with respect to any alleged persecutor.
65. In these circumstances, whilst the court must have regard to the fact that neither the Refugee Convention, the EU Charter and Directives or the Immigration Rules provide for blanket confidentiality with respect to any alleged persecutor, as recognised by Hayden J in F v M there is a duty of confidence at common law owed to a person claiming asylum in respect of the information they provide in support of that claim. Accordingly, the information in issue in this case remains material to which confidentiality attaches where it has come to the knowledge of the Secretary of State in circumstances where the Secretary of State has agreed that the information is confidential and will only be disclosed where there is a requirement of the law to do so.
66. As also recognised by Hayden J in F v M, there is also a public interest in maintaining the confidentiality that arises, the trust that is engendered by a system that maintains such confidentiality being, as Hayden J observed, intrinsic to the operation of both the asylum system generally and the proper discharge by the United Kingdom of its obligations under the Refugee Convention, the EU Directive and the European Convention to those who are vulnerable by reason of, for example, discrimination, ill-treatment or torture. Within this context, I accept that there is also a compelling public interest in ensuring that the confidentiality of the asylum process is protected."
He then proceeded to consider the conduct of the balancing exercise when determining an application for disclosure of confidential asylum documents.
"67. I am equally satisfied that, whilst the question of disclosure into family proceedings of documents from an asylum claim falls to be determined within the context of the confidential nature of the information submitted in support of an asylum application and the wider public interest in maintaining the confidentiality of the asylum process as set out above, the foregoing principles do not prevent a court ordering disclosure and inspection of such documents into proceedings under the Children Act 1989 in an appropriate case.
68. Whether disclosure and inspection is appropriate in a given case will depend on the outcome of a balancing exercise that weighs the rights of each individual concerned (including third parties whose rights may be affected by disclosure, for example family members who remain in the refugee's country of origin), the welfare of the subject child or children and the confidential nature of the documents that are the subject of the application and the wider public interest in maintaining public confidence in the asylum process.
69. Depending on the facts of the case, the rights engaged may include the rights of the refugee (and potentially third parties) under Art 2 and Art 3 of the ECHR and will include the rights of the refugee under Art 8, the rights under Art 6 and Art 8 of the party seeking disclosure and the rights of the child under Art 8. As Munby LJ (as he then was) observed in Durham County Council v Dunn at :
'The reality now in the Family Division is that disputes about the ambit of disclosure, whether in relation to social work records or other types of document, are framed in terms of the need to identify, evaluate and weigh the various Convention rights that are in play in the particular case: typically Article 6 and Article 8 but also on occasions Articles 2, 3 and 10.'
70. Whilst no right will start with preferential weight, the authorities make clear that, when considering questions of disclosure and inspection, the court is required jealously to guard the Art 6 right of the parties to a fair trial. Within this context, the court will bear in mind at all times that it is a fundamental principle of fairness and natural justice that a party is entitled to have sight of all materials which may be taken into account by the court when reaching a decision adverse to that party, including the determination of any allegations levelled at them. Any qualification of the right to see documents relevant to the issue to be determined by the court will only be acceptable if directed towards that clear and proper objective and any non-disclosure must be limited to what the situation imperatively demands and will be justified only when the case for non-disclosure is compelling or strictly necessary. To this end, the court will be rigorous in its examination of the feared harm disclosure will cause.
71. Within that latter context, the confidential nature of the material submitted in support of an asylum claim, and the public interest in maintaining public confidence in the asylum system by ensuring vulnerable people are willing to provide candid and complete information in support of their applications, will attract significant weight in the balancing exercise. However, whilst Mr Payne sought to resurrect the argument he ran before Hayden J in F v M that, within the context of the cardinal importance of confidentiality to an effective asylum process, a presumption of exceptional circumstances applies to questions of the disclosure of documents from the asylum process, I too reject that submission. There is no presumption of exceptionality when it comes to considering the disclosure of asylum documents into proceedings under the Children Act 1989. I agree with Hayden J that to introduce such a presumption would be corrosive of the efficacy of the balancing exercise the court is required to undertake.
72. Paragraph 339 IA of the Immigration Rules (reflecting Art 22 of Directive 2005/85 EC) makes clear that information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant. Within this context, I accept that it is difficult to see how a court could order disclosure of material in a pending asylum application into proceedings under the Children Act 1989 where the parent seeking disclosure is an or the alleged persecutor. However, having regard to the principles set out above, I am satisfied that the position is different where the application for asylum has been determined, either successfully or unsuccessfully.
73. Mr Payne submits that provision of material to an alleged persecutor following a successful asylum claim into family proceedings can only take place in the most "exceptional" circumstances. However, in line with the decision of Hayden J in F v M, I have already rejected the notion that there is presumption of exceptionality when considering the question of disclosure. Further, in R v McGeough the Supreme Court (in observations that were not dependent on the factual matters that distinguish that case from this one) made clear that Art 22 of Directive 2005/85/EC (from which Paragraph 339 IA of the Immigration Rules is derived) containing the prohibition on disclosure to an alleged perpetrator is specifically relates to the process of examination of the claim and does not extend beyond its determination. Within this context, nowhere in the Directive or the Immigration Rules is it suggested that a test of exceptionality applies following the successful (or unsuccessful) conclusion of an asylum claim. Within this context, whether disclosure and inspection takes place following a successful or unsuccessful claim for asylum will depend on the balancing exercise set out above executed by reference to the particular facts of the case.
74. Within this context, I cannot accept Mr Payne's submission that a prior finding of the Secretary of State or the First Tier Tribunal that the person seeking disclosure is a persecutor must mean that, at the outset, the scales are heavily weighted against disclosure and inspection following a successful claim for asylum. In some cases it may have that consequence, but it some cases it may not. Whether documents from the asylum process will be provided to an alleged persecutor who is a party to proceedings under the Children Act 1989 following a successful (or unsuccessful) claim depends on all of the facts of the individual case and the balance that is struck on the basis of those facts, having regard to the principles set out above."
" … each touches and concerns the accounts given by the mother of the matters of fact now in issue before the court. As I have observed, that documentary material might be said, prima facie, to lend some support to the mother's case in terms of a degree of consistency that is apparent across the accounts provided by the mother within the asylum process and the accounts provided by her within the family proceedings, as well as containing inconsistencies that offer potential lines of forensic enquiry for the father and are relevant of credibility of the mother. Within this context, the Secretary of State concedes that the documents in issue are, prima facie, relevant to the issues of fact before the court."
"The court has to consider first whether disclosure of the material would involve a real possibility of significant harm to the child. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case."
"41. First, with respect to the individual asylum seeker, any breach of the confidentiality promised to that asylum seeker may risk harm to that person or to members of their family and to friends and acquaintances in their country of origin. Given the circumstances that drive individuals to seek asylum, such harm may extend to a breach the right to life under Art 2 or the right to freedom from torture or other cruel of inhuman treatment under Art 3 (see Re B (Disclosure to other Parties) [supra] at  to  and A Local Authority v A  2 FLR 1757). However, and as have set out above, the extent to which this risk will manifest itself in a given case falls to be evaluated by reference to the evidence in that case.
42. Second, and more widely, I accept Mr Goss' submission that, beyond the need to keep individual asylum seekers safe, the confidentiality of the asylum system allows the Secretary of State to encourage full and frank disclosure from those seeking asylum and, in addition, increases the ability of the Secretary of State to make effective and accurate decisions about international protection and to produce guidance and policy in respect of the same from this crucial source of information about particular countries, trends, and migration and trafficking routes.
43. Within this twin context, I accept that there is a public interest in ensuring that the confidentiality of the asylum process is protected and I am satisfied that in this case that that public interest must attract significant weight in the balancing exercise."
"47. … I am satisfied that the Art 6 rights of the father and the procedural aspects of his Art 8 rights should be accorded very significant weight in the balancing exercise the court is required to carry out in determining whether to order the disclosure to the father of material relevant to the issues of fact before the court. In these proceedings under Part II of the Children Act 1989 the mother levels against the father allegations of the utmost seriousness, asserting that he is the perpetrator of domestic abuse and child sexual abuse. The father strongly disputes the allegations made by the mother (and indeed positively asserts they are fabricated). The nature of the allegations is such that if found proved they are likely to have a very significant impact on the future determination of H's welfare and, in particular, the extent to which the father and son are able to enjoy a relationship with each other. The mutual enjoyment by father and H of each other's company constitutes a fundamental element of family life within the meaning of Art 8(1) of the Convention and, subject to the provisions of Art 8(2), domestic measures hindering such enjoyment amount to an interference with the right protected by Art 8(1).
48. Within this context, the authorities make clear that, when considering questions of disclosure and inspection in family proceedings, the court is required jealously to guard the Art 6 right of the father to a fair trial. It is a fundamental principle of fairness and natural justice that the father is entitled to have sight of all materials which may be taken into account by the court when reaching a decision adverse to him, including the determination of any allegations levelled at him. The same principles apply with respect to procedural elements of Art 8. A failure to disclose relevant documents to a parent within a process for determining contact arrangements between that parent and their child will not afford the requisite protection of the parent's interests as safeguarded by Art 8 unless that failure to disclose is justified by reference to Art 8(2) (see McMichael v United Kingdom (1995) 20 EHRR 205). In the circumstances, I am satisfied that it would be a highly unusual step to withhold from a parent facing serious allegations of domestic abuse and child sexual abuse evidence relevant to the determination of those allegations and a step requiring the strongest justification."
"Within the context of the best interests of H being the court's paramount consideration in proceedings under Part II of the Children Act 1989, whilst the mother maintains that she does not seek to rely on this information the quasi-inquisitorial nature of the proceedings does not prevent the court from determining that this material, of which it is now aware and which is relevant to the proper determination of H's welfare, should be before the court (in which circumstances the father's Art 6 right to a fair trial also means he is also entitled to see the same)."
"55. …. The starting point must be that the father is entitled to consider all evidence that is relevant in that context, pursuant to his cardinal rights under the ECHR and the common law principles of fairness and natural justice, as is H. Given the gravity of the allegations in issue and the evidence before the court regarding the contended for risk of harm to the mother and H of disclosure, I am satisfied that these considerations outweigh the risk of harm to the mother and H and that the same is not, in this case, a clear and proper objective justifying withholding relevant evidence from a parent facing allegations of physical and sexual assault and child sexual abuse. Further, I am likewise not satisfied in this case that the public interest in maintaining the confidentiality of the asylum system generally is sufficient to justify the grave compromise of the fair trial and family life rights of father and H which non-disclosure of relevant corroboratory and contradictory evidence concerning allegations of domestic abuse and child sexual abuse of the utmost seriousness would entail on the facts of this particular case. For the reasons I have given, it would be an exceptional course for a parent in family proceedings, facing serious allegations of this nature, to be disadvantaged in comparison to other parents in a similar position simply by virtue of the fact that evidence relevant to the determination of those allegations had been the subject of prior consideration in the asylum process. In these circumstances, I am not satisfied that the accepted need to safeguard integrity of asylum process generally justifies in this specific case undermining the operation of cardinal rights that are one of the very reasons this jurisdiction is considered a safe haven for those seeking asylum.
56. Finally, I accept that my decision will result, upon the determination of H's claim for asylum, in the disclosure of certain documents from the asylum process to a person considered in the context of the asylum system to be a perpetrator. However, for the reasons I set out in my previous judgment, the fact that the person seeking disclosure is considered within the context of the asylum process to be a persecutor does not mean that, at the outset, the scales are weighted against disclosure and inspection following a successful claim for asylum. Whether documents from the asylum process will be provided to an alleged persecutor who is a party to proceedings under the Children Act 1989 following a successful (or unsuccessful) claim depends on all of the facts of the individual case and the balance that is struck between the various competing rights and interests on the basis of those facts. It is the balancing of those rights and interests on the facts of the particular case, and not the application of a general policy, that properly leads to the conclusion of whether disclosure should or should not take place in a given case. Within this context, this judgment constitutes no more than a decision on the particular facts of this case."
"57. As I noted in my previous judgment, a tension is created in this case by the fact that the information in issue is relevant in two different forensic contexts, in which two forensic contexts precisely the same allegations are the subject of consideration, but in which the role of the person against whom the allegations are made is markedly different. During the currency of the asylum claim the father has no right to know the allegations against him, no right to answer those allegations and cannot see the information that is said to evidence the conduct alleged. By contrast, during the currency of the subsequent proceedings under the Children Act 1989 the father has a cardinal right to know those same allegations against him, a cardinal right to answer those allegations and, ordinarily, is entitled to see the information that is said to evidence the conduct alleged.
58. Within this context, whether disclosure and inspection is appropriate in a given case will depend on the outcome of a balancing exercise that weighs the rights of each individual concerned (including third parties whose rights may be affected by disclosure, for example family members who remain in the refugee's country of origin), the welfare of the subject child or children and the confidential nature of the documents that are the subject of the application and the wider public interest in maintaining public confidence in the asylum process. In this case, that balancing exercise comes down in favour of disclosure of the documents I have listed. In other cases, the balancing exercise will produce a different result on the facts. As I have stated, and repeat, this decision does not signal any change in the general approach to disclosure into family proceedings of asylum documentation. Rather, it constitutes no more than the application of settled legal principles to the very particular facts of this case."
Submissions on appeal
(1) The judge's summary of the relevant principles in the first judgment failed to afford sufficient weight to the critical importance of confidentiality vis a vis the "persecutor" which underpins the Geneva Convention and the Procedures Directive. It was contended on behalf the Secretary of State that none of the information in the asylum documents should be disclosed to the father as the "persecutor" against whom allegations of abusive behaviour had been made which the tribunal judge had found to be credible.
(2) The judge's summary of the principles failed to afford sufficient weight to the public interest in maintaining the confidentiality of the asylum process as recognised in the analysis of Hayden J in his decision in F v M.
(3) The judge erred in making an order for disclosure of asylum material when the claim for asylum in respect of the child was still pending.
(4) The judge erred in failing to provide any or any adequate reasons for reaching a different conclusion as to the disclosure than that arrived at by HHJ Corbett in the Hague Child Abduction Convention proceedings.
"obviously such information should not be disclosed to those who have persecuted the applicant."
He submitted that this principle applied not only during the asylum proceedings but also afterwards, whether or not the claim for asylum has been established. The effectiveness of the asylum process hinges on asylum seekers having confidence in the assurances they are given that any information provided by them will remain confidential. Anything that undermines the assurances is likely to undermine the willingness of asylum seekers to provide full and frank disclosure which, in turn, would hamper the Secretary of State's ability to make effective and accurate decisions about international protection, whether in relation to individual cases or more widely. Mr Payne submitted that the judge failed to explain how the public interest in maintaining confidentiality acts as a complete bar to disclosure to the alleged persecutor during the asylum process but, once the claim has been established, the fact that disclosure is to the persecutor carries little or no weight. By saying, as set out in paragraph 56 of the second judgment, that the balancing exercise "depends on all of the facts of the individual case and the balance that is struck between the various competing rights and interests on the basis of those facts", the judge ignored the increased harm to the public interest in the confidentiality of the asylum process arising from an order for disclosure to a persecutor.
Discussion and conclusion
"whether disclosure and inspection is appropriate in a given case will depend on the outcome of a balancing exercise that weighs the rights of each individual concerned (including third parties whose rights may be affected by disclosure, for example family members who remain in the refugee's country of origin), the welfare of the subject child or children and the confidential nature of the documents that are the subject of the application and the wider public interest in maintaining public confidence in the asylum process".
"no party sought seriously to dispute that this changed procedural and forensic context requires the question of disclosure and inspection of the asylum documentation to be considered anew."
If the judge was obliged, as all parties agreed, to consider the question anew in the new forensic context, the fact that he reached a different conclusion from that arrived at by Judge Corbett does not call for any explanation, nor give rise to any ground of appeal.
"the rights engaged may include the rights of the refugee (and potentially third parties) under Arts 2 and Art 3 of the ECHR and will include the rights of the refugee under Art 8, the rights under Art 6 and Art 8 of the party seeking disclosure and the rights of the child under Art 8 [emphasis added]"
This passage from the first judgment is cited in paragraph 13 of the second judgment. When carrying out the balancing exercise, the judge looked for evidence to support the mother's assertion that she was at risk of harm if the information she had given in confidence was disclosed but found that no such evidence had been filed. This demonstrates that he had her claim to confidentiality firmly in mind when conducting the balancing exercise. In my judgment, there is no merit in the submission that the judge overlooked the mother's rights.
PETER JACKSON LJ
45. … The father has a great deal of information about the mother's asylum application already, far, far more than 'a gist'. He has the detailed refusal letters and the full unredacted ruling by the independent judicial tribunal describing the mother's consistent account. He has the mother's detailed statements and exhibits provided both in these proceedings and in the asylum proceedings. …"
The question at that point was whether the child was settled in this country. HHJ Corbett found, rightly in my view, that further disclosure from the asylum file could add nothing in relation to that matter. The parties and the Secretary of State played a full part in the process.
" … each touches and concerns the accounts given by the mother of the matters of fact now in issue before the court. As I have observed, that documentary material might be said, prima facie, to lend some support to the mother's case in terms of a degree of consistency that is apparent across the accounts provided by the mother within the asylum process and the accounts provided by her within the family proceedings, as well as containing inconsistencies that offer potential lines of forensic enquiry for the father and are relevant of credibility of the mother."
(1) A balance has to be struck between two important public interests: the right to a fair trial and the integrity of a confidential asylum process both for the individual applicant and for applicants generally.
(2) The approach to be taken to an exercise of this sort is set out by this court in Durham County Council v Dunn  EWCA Civ 1654.
(3) Absolute confidentiality only applies during the process of examination of the asylum application: R v McGeough  UKSC 52.