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Limits on transparency in the family courts

Date:11 JUN 2018
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Family analysis: Following a judge’s decision in 2002 that a girl who was then two years old should live with her father and that the mother should not have direct access, the Family Division in Re G (A Child) [2018] EWHC 1301 (Fam), [2018] All ER (D) 148 (May) refused a recent application by the girl’s older half-brother for access to all the files in the 2002 proceedings, and also refused the mother’s application for the removal of the undertaking she had given the judge not to communicate with the media. Adam Wolanski, barrister, of 5RB, examines the issues.

What are the practical implications of the judgment?

The case was unusual. It concerned two applications in relation to the 2002 private law proceedings – one brought by the half-brother to obtain documents from the court file so he could learn the truth about his past and about his parents, and the other by the mother so she could disclose information about the case to the world at large and campaign publicly to establish her innocence of the findings made by the judge.
In the present judgment Sir James Munby, President of the Family Division, explained the legal principles applicable where persons wished to obtain information from the court about cases concerning their family history.
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What was the background?

The 2002 trial concerned a dispute between the mother and the father in relation to their young daughter. The trial judge, Singer J, had to consider in some detail the circumstances of the older half-brother, who was then aged 17 and living with his mother. There was another older half-brother, who was then aged 15 and living with his father.

Singer J decided that the daughter should live with the father and that she should have no direct contact and only very limited indirect contact with the mother, who has consequently played no part in her upbringing. Contact between the daughter and the applicant half-brother broke down in 2005, since when, despite various attempts on his part, they had not seen each other.

The mother and father gave undertakings in 2002 not to communicate with the media about the case. Singer J also made provision for certain limited disclosure of his judgment to the half-brother.

What did the court decide?

The half-brother’s application was for permission to see all 30 trial bundles on the court file. The court allowed him access to a limited number of documents, and only on terms that he provide an undertaking not to communicate their contents more widely. The court reviewed the authorities on the existence and extent of the right, recognised at common law and guaranteed by Art 8 of the European Convention on Human Rights (ECHR), to know the truth about one’s past.

Family Procedure Rules 2010 (FPR 2010) (SI 2010/2955), r 29.12(1) which governs access to, and inspection of, documents held at court, contains no limitation on, or indication of, the circumstances in which a court should exercise its power in any particular case. There is no limitation of the power to exceptional circumstances. In Re X (Adopted Child: Access to Court File) [2014] EWFC 33, [2015] 1 FLR 375, Munby P had considered the Adoption Rules 1984 (SI 1984/265), r 53.4 (now FPR 2010 (SI 2010/2955), r 14.24), which is in materially the same terms. As in applications under that rule, the court had to give anxious scrutiny to the public interests in issue and, critically, to the private (and probably conflicting) Art 8 ECHR rights and other rights of everyone involved.

Here, the Art 8 ECHR rights of the girl, the father and the other half-brother were engaged. The applicant half-brother’s right to explore his own history could not 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. The girl and the father had interests which, given their much more central role in the proceedings before Singer J, if anything attracted a rather greater degree of protection than those of the half-brother.
Also of significance was the fact that his desire to gain an understanding of Singer J’s decision could not entitle him to conduct an archaeological excavation through the entirety of the trial bundles so as to enable him to come to his own conclusions about the quality of the evidence or the reliability of Singer J’s reasoning and conclusions.

Moreover, the culture of the family justice system was very different in 2002 and, at that time, someone in the father’s position would realistically have had an expectation of a rather greater degree of privacy in relation to the court papers than there would be today. There is now a considerably greater degree of transparency in family proceedings than there had been in 2002.

In conclusion, the additional advantage to the half-brother of affording him access to all the papers he wished to read was plainly counter-balanced by the adverse impact it would have upon his half-sister and the father. Only more limited access to documents was justified.

The court also rejected the mother’s application to be released from her undertaking not to publish information from the 2002 case, and for the court to relax the restrictions in s12 of the Administration of Justice Act 1960 so that she could publicly protest her innocence of findings made in 2002. However, a public campaign of the sort the mother wished to bring would interfere significantly with the Art 8 ECHR rights of her daughter in particular.

Given that her ‘new evidence’ was and would remain untested in court, since she was not appealing against the 2002 findings, such an interference would be disproportionate.

Adam Wolanski appeared for the applicant half-brother in this case.

Interviewed by Robert Matthews.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial