NG (A Child) (Disclosure of Asylum Documents) (No 1), Re

This is an “open” judgment which will be provided to all of the parties in this case. For the reasons that I explain below, I have also prepared a “closed” judgment which is not to be published or to be provided to the applicant or to his legal representatives without further order of the court.

I have to decide whether certain material arising from an application for asylum should be subject to disclosure and inspection in family proceedings.

The substantive proceedings with which I am concerned relate to an application under the inherent jurisdiction for the summary return of a five year old girl to Country A. The applicant is the child’s father. His case is that the respondent mother wrongfully removed the child from Country A in October 2023 and brought her to the UK. He seeks the return of the child to Country A. The mother resists the application. In summary, her case is that she was the victim of physical, mental and sexual abuse and controlling and coercive behaviour by the father and of physical, mental and controlling behaviour by the father’s parents. She also alleges that the child was the subject of a sexual assault by the paternal grandfather in Country A. The mother’s case is set out in a lengthy witness statement dated 26 September 2025 that has been filed within these proceedings. Her allegations are all vehemently denied by the father.

The parents and child are all nationals of Country A. They were married in 2017. The child was born there in 2021. In October 2023 the mother applied for a divorce in Country A without first informing the father and travelled with the child to the UK. There she sought asylum, with the father and his family being identified as the source of the feared persecution. Her application was granted in November 2024. The child has also been recognised as a refugee on the basis of her dependency on the mother.

An issue has arisen as to the extent to which the mother is entitled within the family proceedings to withhold disclosure and inspection of documents relating to her asylum application. This was listed before me for determination. At the hearing on 13 February 2026 the mother was represented by Mr Mark Twomey KC and Ms Rebekah Wilson of counsel and the father by Mr Michael Gration KC and Ms Naima Asif of counsel. The child was represented by Ms Lina Khanom, solicitor, of Cafcass Legal and the Secretary of State, who has intervened on this issue, was represented by Mr Michael Edwards of counsel. All parties had filed detailed skeleton arguments on the legal issues raised by the application, for which I am grateful. Both parents attended the hearing remotely.

The hearing began with a short open session with all parties being represented during which I heard brief oral representations that supplemented their written submissions on the law. Mr Gration, Ms Asif and their client then withdrew and having regard to the guidance provided by MacDonald J in R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam) at [77]I reviewed the material in question and heard detailed submissions on its terms in their absence.

In his skeleton argument, Mr Edwards identified four specific documents which the court would need to consider:

Ultimately, I was also required to consider a small number of additional documents, which I do not specifically identify in this open judgment, but which are described in the closed judgment.

In the course of the closed session, it became clear that none of the parties objected to the disclosure and inspection of the Mother’s Decision Letter and the Child’s Decision Letter, subject to redaction of certain details such as addresses, reference numbers and the identity of Home Office officials.

Following the closed session, I announced my decision to the parties (initially within the closed session and subsequently in open session), which was that all of the various documents should be disclosed and open to inspection by the father subject to (a) certain redactions and (b) the imposition of restrictions on any collateral use that could be made of the documents by the father. I indicated that I would provide a written judgment setting out my reasons underlying this decision. For the mother, Mr Twomey indicated that he would wish to consider his position in respect of any appeal once he had seen that judgment. In order not to prejudice any such appeal by revealing the substance of the material in dispute, this judgment is therefore divided into two parts; an “open” portion which has been provided to all parties and a “closed” portion that makes reference to the additional submissions made in the closed session and setting out greater detail for my reasons for ordering disclosure. This closed judgment will be withheld from the father and his representatives until further order.

In support of her application to withhold disclosure and inspection from the father, the mother has raised a number of specific concerns about the provision of the disputed material to the father. Set out in a witness statement dated 12 February 2026, these are:

There is no dispute between the parties as to the relevant legal test that I have to apply, and I have been taken in particular to the decision of Knowles J in Re G (Inherent Jurisdiction Return: Disclosure of Asylum Documents) [2022] EWHC 2134 (Fam) which itself draws on the decisions of the Court of Appeal in Dunn v Durham County Council [2012] EWCA Civ 1654 and Re H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001. My attention has also been drawn to the President’s Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings. From these authorities, the following principles emerge:

This is a case where there is a stark factual dispute between the parents. The mother has made numerous allegations of serious abuse against the father and his relatives; including an allegation that the paternal grandfather had sexually assaulted the child. She relies upon these allegations to defend the father’s application for the return of the child to Country A under the inherent jurisdiction. For his part, the father asserts that the mother’s allegations are a complete fabrication. All parties identified in their submissions to the court that this is a case where some form of fact finding is highly likely to be required, although the precise scope of that exercise has not yet been determined. No party sought to suggest that the issue of disclosure should be adjourned to await a final decision on the scope of any fact find.

The mother seeks to withhold disclosure. Mr Twomey KC questioned the relevance of the material to the family proceedings and argued that there was no reason to consider that the father would be placed at a disadvantage if the documents were not disclosed. He expanded upon these submissions in the closed session and I deal with these in the closed portion of this judgment. He also stressed the concerns about collateral use that have been raised by the mother in her 12 February 2026 witness statement, and raised an additional concern; that providing disclosure to the father could enable him to use the documents to challenge the child’s asylum status in the UK.

For the father, Mr Gration argues that to the extent that the asylum documents (which he has, of course, not seen) address the allegations that the mother makes against the father and his family, they are relevant to the current dispute. The accounts given therein would stand to be compared with the mother’s evidence within these proceedings and may undermine or support the mother’s credibility. He argues that it is imperative that the father, who faces allegations of the utmost seriousness, is able to fully and properly test the allegations that the mother makes against him and his family; and contends that it would be contrary to the father and child’s Art 6 rights for the court to concern itself only with the allegations that the mother has made within this process, without either the father or his family being given the chance to explore and test the mother’s credibility by reference to all of the occasions upon which she has reported the allegations.

He argues that the possibility that findings made within the family proceedings could be used to challenge the child’s asylum status in due course is not a reason to withhold disclosure. He asserts that there is no credible evidence to support the fears the mother has outlined about collateral use of the documents and contends that any concerns that the court has in this regard can be addressed by the court accepting undertakings from the father or imposing orders regarding such collateral use. Overall, he contends that the father’s Art 6 and 8 rights, together with common law principles of fairness and natural justice and the child’s best interests outweigh any interest in preserving the confidentiality of the asylum process in this case.

The Secretary of State supports the mother’s application in principle to withhold disclosure and inspection of the documents as part of her wider duty to uphold the integrity of the asylum system in the UK. She identifies in her skeleton argument that confidentiality is a cornerstone of the immigration process, and that whilst this does not prevent the court from ordering disclosure, it is an important factor for the court to take into account when conducting its balancing exercise. She also argues that the prohibition on disclosure to the alleged actor of persecution under the Immigration Rules applies to the examination of asylum applications and to applications as to whether refugee status should be revoked and she raises the concern that the latter protection would be meaningless if disclosure were to be provided to the father within these proceedings and revocation proceedings then followed. Mr Edwards made additional submissions in respect of the individual documents in the closed session.

For the child, Ms Khanom accepted that the contents of the asylum documentation are capable of being relevant. Her written submissions identified that they were likely to contain accounts of the alleged persecution which substantially overlap with those already advanced by the mother, and queried whether, having regard to Durham County Council v Dunn, it could be said to be strictly necessary to withhold disclosure of such material. However, she also invited the court to consider whether disclosure would add materially to the father’s ability to respond, or whether it would amount to dissemination of highly sensitive material that is only marginally additional to the evidence already before the court. She also discussed the potential for disclosure to have a destabilising impact on the mother and child and raised concerns that the mother’s anxiety about the potential consequences of disclosure may affect her functioning as the child’s principal carer. She concluded her written submissions by inviting the court, if it was minded to order disclosure, to impose limitations and restrictions by redacting information such as the mother and child’s Home Office reference numbers and address, and imposing restrictions on collateral use.

For the reasons that I have set out in greater detail in my closed judgment I have concluded that the great majority of the information that is contained with the documents that were presented to me in closed session is relevant to the issues that are before the court within these proceedings. I consider that a document is relevant, and thus potentially disclosable, if it may assist a party in testing an account that has been given by a witness. The test for standard disclosure in civil proceedings is quite wide, encompassing documents which adversely affect a party’s own case, adversely affect another party’s case or support another party’s case (CPR 1998 r31.6), and I see no reason why the test should be substantially different in family proceedings.

I have however concluded that certain information relating to the mother’s physical and mental health is not relevant to the issues that are currently before the court and therefore does not currently fall to be disclosed (although this issue may need to be revisited if the mother seeks to raise her health as a reason for refusing a return).

In relation to the remaining material, I am required to carry out a balancing exercise taking into account all of the matters identified above, including the public interest in there being confidentiality within the asylum process; the mother’s and child’s right to confidentiality; the Art 6 and 8 rights of the father and of the child and common law principles of fairness and natural justice. I have also taken into account the arguments against disclosure made by the mother in her written witness statement. I also recognise that the serious nature of the allegations made by the mother may also engage the Art 2 and 3 rights of her and members of her family.

I have considered all of these matters extremely carefully. I consider that there is significant weight in Mr Gration’s argument that the Art 6 rights of the father and the child point towards disclosure and inspection being ordered in this case. I also consider that there is some force in his complaint that the mother’s witness statement of 12 February 2026 is largely assertion and there is little evidence to suggest that the father would seek to make collateral use of the documents; for example it is unclear how an unidentified family friend, said to be a member of the Bar, could use his influence to have the mother’s refugee status revoked; whilst the proceedings against the mother’s father in Country A appear to be based on allegations of previous breaches of court orders in that jurisdiction.

In any event, even if there is merit in the concerns raised by the mother about collateral use, these can be addressed by my imposing conditions on the use to which the father may put the disclosed material. If I impose restrictions on such use, I do not consider that there is any real possibility of significant harm to either the mother or child within this jurisdiction or to members of the mother’s family elsewhere.

For reasons that are set out in greater detail in the closed judgment, I have concluded that it is not strictly necessary to withhold disclosure and inspection and that I should therefore order disclosure and inspection of all of the identified documents subject to certain restrictions and limitations.

In terms of those limitations, I consider that various categories of confidential information should be redacted from the documents before they are disclosed. These are:

It seems to me that it is entirely appropriate for the court to seek to control collateral use of the documents. That is the default position in civil proceedings, where the material in question is rarely of the degree of sensitivity of the material in this case. CPR 1998 rule 31.22 prevents the collateral use of disclosed documents outside the proceedings in which they have been disclosed, unless (a) the document is read to or by the court or referred to at a public hearing, or (b) the court gives permission, or (c) the party who disclosed the document and the person to whom the document belongs agree.

Given the concerns that have been raised by the mother regarding collateral use, the confidential and private nature of the documents in question, and the fact that they have come into existence in the course of asylum proceedings, in which there is a general public interest in confidentiality, I am satisfied that restrictions on the collateral use of the documents are necessary in this case and should be imposed. Whilst I have concluded that the father and his legal advisers should be entitled to inspect the documents and thereby deploy them within the current proceedings, I am satisfied that there is, at present, no reason why he should be entitled to make any use of this material other than for the purposes of these proceedings.

I will therefore make an order providing that the father may not use the disclosed documents for any purpose other than for the prosecution of these proceedings without further order of the court. This restriction addresses the majority of the concerns that have been raised by the mother in her recent witness statement. The father will not be entitled to use the documents against her or against members of her family either in Country A or this jurisdiction without the court’s permission.

I recognise that the father is outside the jurisdiction of the court, and that if he were to breach this order, enforcement would not be straightforward. I consider that this matter can be addressed in the same way that Knowles J identified in in Re G (Inherent Jurisdiction Return: Disclosure of Asylum Documents) [2022] EWHC 2134 (Fam) at [50]. First, he is likely to need to travel to this country to participate in the final hearing, and any breach of the order could be addressed then. More generally, the use by the father of the disclosed documents in breach of the court’s order would be likely to compromise the father’s application and be deemed inimical to the child’s welfare. This may result in the proceedings being resolved swiftly and summarily in the mother’s favour.

The risk of the father making collateral use of the documents can be further reduced by my accepting a proposal that Mr Gration made in his skeleton argument, namely that the documents should at all times remain in the custody of his legal representatives. They may be shown to the father either in person or through the use of screen sharing technology, but he is not to be provided with the documents themselves (either in hard copy or electronically). The father will also be prohibited from copying the documents or recording any screen on which the documents are being shared with him. I will make a further order in these terms.

The width of these injunctions will therefore also prevent the father from making use of the disclosed documents within any application to set aside the recognition of the child’s refugee status for the time being, thereby addressing the immediate concerns of the mother and Secretary of State. Should the father wish, following the final outcome of these proceedings, to make use of the disclosed documents for such a purpose, he would need to apply to the court for a variation of my order. That would seem to me to the proper moment to consider the argument made by Mr Edwards on behalf of the Secretary of State, that permitting the use of documents for such purposes would be a breach of the Immigration Rules. More likely, perhaps may be an application by the father for permission to disclose any final judgment from these proceedings to the Secretary of State. That would fall to be determined on established principles – see Re G (Inherent Jurisdiction Return: Disclosure of Asylum Documents) [2022] EWHC 2134 (Fam).

I therefore hold that all of the documents that were provided to me for consideration should be disclosed by the mother and provided to the father for inspection subject to the following conditions:

If the father and / or his legal representatives are willing to offer undertakings in like terms, I would be willing to accept those in place of the injunctions that I have identified. Whether the obligations are secured by orders or undertakings, the father should understand that any breach will be regarded extremely seriously by the court and could lead to him being fined or imprisoned.