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FAMILY PROCEEDINGS: Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam)

Date:22 JUL 2009

(Family Division; Munby J; 8 July 2009)

In the course of highly acrimonious residence and contact proceedings an expert consultant psychiatrist prepared reports on both the mother and the father. Within days the father had prepared a statement criticising the reports and questioning the expert's professionalism. Some months later the father requested leave to disclose certain documents, including both reports, to the expert's professional body, the General Medical Council, for the purpose of making a complaint about the expert. At this stage the disclosure of documents generated in the course of children proceedings was regulated by Administration of Justice Act 1960, s 12 and Family Proceedings Rules 1991, r 10.20A. By the time the father's application was heard, the rules had changed however, and disclosure in such cases was now governed by r 11 of the FPR 1991. The mother and the guardian accepted that under the new r 11 the father was entitled to disclose the expert's report about himself in the course of making a complaint without leave of the court, but opposed disclosure of the report about the mother, and any other documents.

Under r 11.4(1)(c), the leave of the court was no longer required to disclose documents from children proceedings for the purposes of a complaint against a person or body concerned in the proceedings. A party to children proceedings could, in principle, communicate whatever information relating to those proceedings he chose in support of a complaint against X, irrespective of the subject-matter or nature of the complaint, irrespective of the person, body or organisation to whom the complaint was made, and even if the complaint had nothing to do with the proceedings, so long only as X was concerned in the proceedings. The rule therefore extended drastically both the circumstances in which disclosure could be made and the content of disclosure that could be made without prior judicial approval. There was, seemingly, no requirement that the complaint itself have any connection with the proceedings, and the class of persons or bodies 'concerned in' the proceedings was not limited to those who were parties, but embraced witnesses, advocates, solicitors, guardians, officers or representatives of the local authority, judges, etc. Quite plainly the word 'complaint' was intended to cover complaints made to disciplinary or regulatory bodies, but there was nothing to show that it was limited to such cases.

There were three important limitations and safeguards on the very wide ambit of the rule: (i) the disclosure must be 'necessary to enable [the person complaining] to make and pursue' the complaint (r 11.4(1)); (ii) the person receiving the information disclosed was able to communicate the information to others only with the consent of the complainant and for the purposes of the complaint (r 11.4(3)); (iii) the rule did not permit communication of information concerning the proceedings to the public at large, or any section of the public (r 11.2(2)). Someone communicating information in circumstances that would otherwise involve a contempt of court because of s 12 of the Administration of Justice Act could rely on r 11 only if he or she had acted in a way authorised by r 11 as a whole; disclosure that ignored the limitations and safeguards in the rule would be likely to lead to the court imposing penalties for contempt. Judges should be cautious before exercising the court's power under r 11.2(1)(c) to make a direction preventing disclosure of documents in a case falling within r 11.4(1)(c) or (d). In practical terms the court and other parties need not know, and typically would not know, about a complaint being made and documents being disclosed, because there was no duty under the new rules that a complainant inform the court or the other parties. The reality was therefore that in practice it would be impossible to prevent much wider disclosure than hitherto. In this case the father was entitled, by virtue of r 11.4(1)(c), to disclose both reports to the GMC, without the prior sanction of the court or the agreement, or even knowledge, of the other parties. A direction under r 11.2(1)(c) preventing such disclosure would, in these circumstances, be an abuse of position. However, the GMC was bound by the restrictions on further disclosure; this remained confidential information, and the GMC would be obliged to preserve that confidentiality.