Family Law

Family procedural law is not as clear as it might be over when ‘a person who is not a party to the proceedings’ (a non-party) can be compelled to produce documents and other information into family proceedings (eg the police, tax authorities, a doctor or accountant etc). The categories of circumstance in which a non-party can be required to produce documents are:

• An application to the court where statute permits (including as to the whereabouts of children) under Family Procedure Rules 2010 (FPR 2010) r 21.2;
• By witness summons to produce documents in court (FPR 2010 r 24.2(1)(b): formerly subpoena ad duces tecum); and
• By the Norwich Pharmacal procedure (explained below).

21.2 Orders for disclosure against a person not a party

This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings. 
The application… must be supported by evidence.
The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs….

Disclosure against the police

• Senior Courts Act 1981, s 34(2) (and County Courts Act 1984) (applicable to the Family Court: see Matrimonial and Family Proceedings Act 1984 s 31E): an order to a non-party who appears to be likely to have documents ‘relevant to an issue arising out of a claim’.
• Bankers Book Evidence Act 1879, s 7: an order that a bank produce information (Williams and ors v Summerfield [1972] 2 QB 512, QBD Divisional Court on limitations on the jurisdiction).
• Family Law Act 1986, s 33 and Children Act 1989, ss 48 and 50: powers of the court to order non-parties to provide information to the court as to children’s whereabouts.

‘There is a strong public interest in the court having before it all the relevant evidence and documents. The third parties have legitimate concerns about becoming involved in an action which attracts the interest that this action attracts. But they were all police officers and the events in question arise out of their official duties. The public interest in disclosure clearly outweighs the interests of the individual third parties….’

Witness summons for documents

Norwich Pharmacal orders

Communication of information

• Part A: Police information for care proceedings—disclosure by the police of information into the care proceedings; confirmation by the police of the issue of criminal proceedings; and provision for court orders for disclosure by the police. 
• Part B: Information for criminal proceedings from care proceedings—disclosure from care proceedings into the criminal justice system; disclosure of information by the local authority to the police; and provision for formal application by the police to the Family Court for release of information and the court’s judgment. 
• Part C: Linked directions hearings—‘linked criminal and care directions hearings’ are to be considered by the allocated case management judge in the Family Court; and the local authority lawyers, in such cases, must liaise with the CPS as to what its then current position is in care proceedings (para 16.6). Part 17 sets out what must be considered at any linked directions hearing.

The protocol