The Family Court's powers to control the distribution of sensitive material

Baljit Bains, family law partner considers this recent case which reminds the court about disclosure of documents from family proceedings concerning children.

R (Children: Control of Court Documents) [2021] EWCA Civ 162

Following a fact finding hearing where the appellant R was found to be a ‘predatory paedophile’, the trial Judge only granted R permission to be provided with a summary of the court’s findings and a redacted version of the judgment from which explicit sexual references were to be removed. The trial Judge did not allow R to have a physical copy of his judgment or the written submissions presented to the court.

It was argued on R’s behalf that he had “an absolute right to access the papers in the case” and that the court lacked the power to deny him access to those papers once the proceedings came to an end, his role as an intervener having come to an end upon the conclusion of the fact finding hearing.

In refusing R’s request, the trial Judge said the following by way of clarification at [18] of his judgment: “In any care proceedings, there is obviously a legitimate public interest in protecting the children, including from the details of what has occurred with them becoming widely known or shared. Of course, in this case [the children] have a right to privacy arising from their Article 8 rights; and I am satisfied that their Article 3 rights may also be engaged if the contents of the full fact finding judgment were to be released and to be shared for sexual gratification. I consider that that would amount to degrading treatment.”

Further arguments put forward put forward on R’s behalf were also rejected by the trial Judge.  It was argued on R’s behalf that he had cognitive difficulties meant that he required a copy of the full judgment to enable him to “fully understand it”, that he would need the papers for any future reliefs and that he already had various documents in his possession which related to his criminal proceedings.

The trial Judge was not satisfied that any of these arguments outweighed the other considerations which had prompted the Judge’s decision to refuse to allow him to be provided with the documents sought, including the risk that he could use them for his own continued gratification given the references they contained to the sexual acts of which he had been found guilty and / or to disseminate them to other paedophiles.

R appealed this decision on two grounds, namely:

1. The court was wrong in holding that it had the power or jurisdiction to prohibit the disclosure of the full fact-finding judgment and/or the written submissions of each party to R and/or to prohibit his solicitors from disclosing a copy of the full judgment and/or submissions to him.
2. In the event it is held that the court does have the power to make the orders, the decisions were wrong in that; –
   a. The Judge placed too much weight to the perceived risks of unlawful dissemination of the material by R in circumstances where there was insufficient evidence that R had disseminated or attempted to disseminate highly sensitive and/or sexually explicit material which is in his possession from the criminal proceedings and,
   b. The Judge gave too little weight to R’s right and/or future need to have access to the material to inform any further judicial or quasi-judicial process concerning him, whether in family proceedings or relating to his status as a serving prisoner.

Lord Justice Peter Jackson delivered the judgment in the appeal who made it plain that he had granted permission on the basis of the second limb only as doing so provided an opportunity to consider the court’s powers where issues arise regarding the disclosure of sensitive material. He highlighted the distinction between cases relating to withholding documents where a court deems this necessary and achievable without denying access to a fair trial, and this case in which what was proposed was “controlling the physical possession of documents from an individual though not from his lawyers” [20]

In reaching his decision Lord Justice Peter Jackson noted the trial Judge had applied the rigorous considerations more typically applied when considering whether to withhold documents in full and having done so, had “…conducted a conspicuously careful balancing exercise” before concluding that “…his conclusion was not only beyond criticism but, in my view, sound.” He also deemed what was permitted to be provided to R sufficient to ensure that he had “everything he needs to understand the Judge’s decision”. [22] The appeal was refused accordingly.

The Judge also went on to make some further points of note that should be borne in mind for anyone facing a similar situation including that:

a) Issues of this kind are likely to only arise in “the gravest of cases” and that reference should be made to the analysis of Baroness Hale in Re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60; [2012] 2 AC 66, at [31 – 32] which deals with the questions to be considered when it is argued that a subject’s rights under Article 3 have been contravened. [24]

b) A person does not “own” documents such as a position statement or written submissions filed on their behalf “any more than he owns counsel’s oral submissions to the court.” [25]

c) It cannot be argued that a court’s power to make decisions with respect to documents filed during the course of proceedings comes to an end when the proceedings conclude as is demonstrated by the fact that there are rules, such as rule 12.75 and PD12G, which will clearly have an impact beyond the lifetime of the proceedings to which the decision relates. [26]

d) A lawyer’s overriding duty is always to the court and not the client such that where they are not permitted by the court to release a document, or parts thereof, to a client they are released from their otherwise competing duty to them.

If you have a case concerning a child you may need assistance with, please contact Mavis on 020 8885 7986 for an appointment with Baljit, or another solicitor in the family team.