In the matter of G (A child; transparency in the family courts) [2018] EWHC 1301 (Fam)

Case date: 25/05/2018
Court: High Court
Area/s of law: Reporting the Courts & Contempt
Barrister/s: Kate Wilson

Full List of Cases

This unusual case concerning transparency in the family courts arose out of private law residence and contact proceedings which had been decided in 2002 (by Singer J). In 2016, a family member made an application for access to all documents from those 2002 proceedings.

Background

In private law proceedings in 2002, Singer J had ordered that a child (G) should live with her father (F) and have very limited contact with her mother (M).

Singer J’s detailed judgment made what he described as “some extremely unpleasant findings … some seriously grave findings”. In his judgment, he had also considered the circumstances of G’s half-brother (B) and another half-brother (BB). (See para 7). Singer J provided for limited disclosure of his judgment to B, who was 17 at the time and living with M.

In 2002, Singer J had also accepted undertakings from both M and F not to communicate with the media about the case.

Applications

B applied, pursuant to FPR 29.12, for access to the entire court file of the 2002 proceedings. In fact, he sought access to all files which had been in court during the fact finding hearing before Singer J (para 24). The trial bundle before Singer J had comprised more than 30 files, and the court file was “one foot thick”. Over the course of the proceedings B clarified his application; by the hearing he sought to read the documents only for his own personal use.

M, a respondent to B’s application, made various applications to be released from the undertaking she had given in 2002. She considered herself a victim of a miscarriage of justice. M also wanted permission to pass information to her children and to the media, although she proposed that she would anonymise information given to the media.

F opposed both applications (save to limited extents). He also sought G’s removal as a party to shield her from learning about her family history and all its details through the proceedings.

M’s and B’s positions in respect of each other’s applications varied over the course of proceedings.

Parties: G’s removal

G was removed as a party in July 2017. Applying A v Ward [2010] EWHC 16 (Fam), Sir James Munby P accepted that F, having sole parental responsibility for G at the time of the hearings, was the appropriate person to decide what G should be told about her history. It would have defeated part of F’s objections to the applications if she had remained a party as she would have necessarily learned all about the 2002 proceedings and her history by virtue of being a party. (See paras 17-19).

B’s application: access to documents

Although not a party to the original 2002 proceedings, B had common law and article 8 rights to know about his parents, his family history and the truth of that history; Re X (A Child) (Review of Fact Finding in Care Proceedings) [2016] EWHC 1342 (Fam); In re L (A Child) (Human Fertilisation and Embryology: Declaration of Non-parentage) [2016] EWHC 2266 (Fam). Further, such rights may extend to obtaining such information from the public record, Gaskin v United Kingdom (1990) 12 EHRR 36; Gunn-Russo v Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566.

At an interim hearing in October 2016, Munby P granted B access to Singer J’s judgment and 3 expert reports. He subsequently ordered that BB be given the same documents after BB had been located and joined as a party.

As the application was based upon FPR 29.12, which concerns the court file, (and not for disclosure by any parties), the extent of any order which could be made was limited to documents which were on the court file (para 27). However, the President considered the competing arguments by reference to all documents which were included in the trial bundles, rather than “artificially constricting” his consideration to what may have been retained by the court (para 36).

Rule 29.12 does not, itself, indicate how the power to provide access to documents on the court file should be exercised and there had been almost no judicial consideration of the rule. However, the application of the familiar ultimate balancing exercise of Convention rights and private and public interests engaged was the correct approach. (See paras 28, 30, 40).

The Judge rejected B’s argument that, as he no longer wished to disclose matters to third parties, there was no or little detriment to G if he (B) was permitted to read all documents; B’s “right to explore his own history cannot give him carte blanche to explore the history of every member of his family who was, directly or indirectly, involved in the proceedings before Singer J”. G’s and F’s privacy and confidentiality rights weighed heavily in the balance “given their much more central role in the proceedings before Singer J” (para 37). The Judge further accepted F’s argument that the greatest impact on B’s life had been as a result of Singer J’s decision and the consequences flowing from it (which B knew about) rather than the underlying evidence which led to that decision (para 38).

However, while rejecting B’s application for all documents, Munby P granted him access to two additional expert reports and the statements by F, M and 4 other people.

M’s application: publicity

M had never sought to appeal Singer J’s decision. This was relevant as (a) Singer J’s findings of fact were not disturbed by the passage of time and (b) M’s undertaking, given when she had the benefit of representation by Leading Counsel, was expressed as being “until further order”. It therefore had to be complied with unless discharged or varied and was unaffected by G reaching adulthood. (See paras 10-11).

The President rejected M’s applications to be released from her undertaking given in 2002 and to relax the restrictions imposed by the Administration of Justice Act 1960, s.12 on the dissemination of information from the 2002 proceedings to allow her to discuss the case in public:

• Other than the passage of time, nothing of substance had changed since M gave her undertaking in 2002.

• M’s anonymity proposals were unlikely to be effective to protect F and G (and BB). Even if they were, G would still suffer from the intrusion from those matters being publicly discussed.

• The alleged miscarriage of justice argument carried less weight in this case than it has done in others, because M’s argument was that the expert evidence was flawed. However, in 2002 she had ultimately conceded that G should live with F (and not herself), and Singer J had based many of his adverse findings on his assessment of M as a witness (rather than the expert medical evidence). There was therefore no or only a limited connection between M’s argument that the experts were wrong and the outcome of the residence and contact proceedings.

Kate Wilson, instructed by Laceys Solicitors LLP, represented the father (from June 2017)

The judgment is available here.