Alleged child abuse, confidentiality and the Jehovah’s Witnesses: Lancashire CC v E & F

Background

In Lancashire County Council v E & F [2020] EWHC 182 (Fam), A & B, elders of a Congregation of Jehovah’s Witnesses, applied to have set aside a witness summons issued by HHJ Singleton QC on 29 November 2019 in relation to a case of child sexual abuse [1]. The parents were both JWs; their children were E (a girl aged twelve) and F (a boy aged ten). The Mother remained a member of the JWs in good standing; the Father had been “disfellowshipped” in 2017 but continued to attend services [3].

Elder A had informed the police that the Mother had, in 2016, disclosed to the elders of the Community that the Father had sexually abused E [4]. The Father was arrested, gave a “no comment” interview and was released on police bail, including a condition that he did not reside at home. However, in August 2019 his bail conditions were cancelled by reason of time, the Father being advised to continue to abide by the bail conditions. The police interviewed both children, and E alleged that the Father had sexually abused her between 2011 and 2019, starting when she was four [5]. The Mother said that she had disclosed E’s allegations to A and B in 2016 [6].

On 29 October HHJ Singleton ordered that the Local Authority require A and B to set out their investigation of the allegations of sexual abuse made by E and to make available any notes, records, safeguarding reports or statements that were made in connection with the allegations, together with any records of interviews with the Mother or the Father, any risk assessments that had been carried out, the Kingdom Hall’s child safeguarding policy, and any other documents prepared in connection with the allegations [8]. A and B refused to comply and a witness summons was issued [9].

The arguments

Before the Family Division, counsel for A and B argued that there was a duty of confidentiality laid on elders or ministers of religion and they were unable to disclose information communicated to them in the course of confidential “spiritual counselling” without the express consent of the individuals concerned. Further, that duty of confidentiality was protected by Article 9 ECHR. A and B were prepared to disclose information given to them by the Mother, because she had given her consent, but not by the Father because he had not done so [19]. A and B contended that they were under a spiritual duty not to disclose confidential religious communications and if such confidence were breached, individuals might no longer confide in their ministers [20].

Finally, it was argued that the communications with A and B and the documents sought under the witness summons should be treated in the same way as a religious confession. Counsel cited R v Hay (1896) 2 F & F 4 as support for the proposition in Archbold: Criminal Pleading, Evidence & Practice that:

“the position of priest and penitent has not been authoritatively decided, but the tendency of judicial dicta is that, while in strict law the privilege does not exist, a minister of religion should not be required to give evidence as to a confession made to him” [23].

Counsel for Lancashire CC responded that it was clear that A and B held information that was highly relevant to the matters that the Court would ultimately have to decide, in relation to the findings of fact sought in respect of the Father, the allegation that the Mother had failed to protect the children, and any assessment of future risk. The Congregation had known about the allegations since 2016 and had carried out some form of investigation, but had refused to disclose what they were. That was particularly important because the Father had given a “no comment” interview to the police. Further, it was the Mother’s case that she was discouraged by the elders from going to the police [32]. There was also an ongoing risk to other children because the Father was apparently still going to church even though disfellowshipped [33]. Nor was religious confidentiality absolute [34]. Counsel for the Mother and counsel for the children agreed that disclosure should be ordered [35 & 37].

The judgment

Lieven J dismissed the application and upheld the witness summons:

  • there was no evidence that the material sought through the witness summons was in any sense a confession or akin to a confession: it appeared that the allegation of sexual abuse came to the elders’ attention because the Mother reported it, not because the Father had confessed to the elders or sought spiritual counselling [39];
  • the material that the County Council sought did not, on the evidence, amount to “spiritual counselling” [40]; and
  • the Congregation’s own policy indicated that, where a conversation amounted to spiritual counselling but indicated that a child might be at risk of harm, it would be “conveyed to the extent necessary to ensure that the policies and procedures herein expressed shall be properly followed so as to safeguard children” – but that had not been done in the present case [41].

As to the argument under Article 9 ECHR, while A and B’s right to manifest their religious beliefs were protected by Article 9(1), Article 9(2) qualified that right on the grounds of public safety, the protection of health and morals, and the protection of the rights and freedom of others – and “It could not be more obvious that a freedom to manifest one’s religious beliefs must give way to the need to protect a child from sexual abuse” [45]. The witness summons and the requirement for full statements from A and B, together with the documents sought, were a proportionate interference in their right to manifest their religion [46].

Whether or not the case was generally indicative of a more widespread problem within the Congregation was a matter for IICSA, not for the Court; but the judgment would be brought to the attention of IICSA [18].

Cite this article as: Frank Cranmer, "Alleged child abuse, confidentiality and the Jehovah’s Witnesses: Lancashire CC v E & F" in Law & Religion UK, 15 February 2020, https://lawandreligionuk.com/2020/02/15/alleged-child-abuse-confidentiality-and-the-jehovahs-witnesses-lancashire-cc-v-e-f/

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