Transparency and Family Court documents

Sir James Munby P: ‘transparency’ and the family courts

A history of Sir James Munby’s judicial career can be written from his judgments on ‘transparency’ in the family courts. To this can now be added Re G (A Child: transparency in the family courts) [2018] EWHC 1301 (Fam) (18 May 2018), which deals with the relatively limited issues of the extent to which court documents can be released to an applicant; and a party can be permitted to publicise their or other contents of family proceedings.

One of Sir James’s earliest judgments – then as a puisne judge – was Clibbery v Allan [2001] 2 FLR 819 (a party did not need permission from the court in certain family proceedings for release of documents to the press); though the case is mostly known by practitioners from the Court of Appeal’s upholding of his decision (Clibbery v Allan [2002] EWCA Civ 45). Sir James’s case law litany runs on through Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 1 FCR 481, [2004] 2 FLR 949 (permission for a mature child to tell her story to the press if other parties’ privacy was respected) and Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416 (refusal to deny access by the press to a financial relief trial). With Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 2 FCR 284, [2014] 1 FLR 523 the then new President set his seal on his new role by making clear what he held to be the limits on family courts in restraining parents from publishing information (especially in relation to Administration of Justice Act 1960, s 12(1)).

Release of court documents

In Re G Sir James was confronted by an aspect of a substantial subject (of which more is sure to be heard): that of release of court documents to an adult child; and of publication by the mother of documents in the case. In respect of both aspects of this aspect of transparency Sir James extended the jurisprudence; and he made comments on the balance between an individual’s right to know his own family background and the rights of others concerned to have their right to a private life respected.

The case originated from proceedings heard by Singer J in 2002 – when the ‘transparency’ jurisprudential map in family proceedings looked very different to its appearance now. The case concerned what Singer J described as ‘long drawn out litigation of attrition’ in relation to the parties’ – M and F – and their then two year old daughter (G: now about to turn 18).

‘[7] In the case of M, G’s mother, Singer J made a catalogue of what he described as ‘some extremely unpleasant findings … some seriously grave findings’ against her. He went on to refer to M's ‘crusade, which has until the latter stages of this case been to exonerate herself and to demonstrate how wrong everybody else has been’. Of equal significance for present purposes, Singer J also had to consider in some detail (it occupies several pages of the Official Transcript of the judgment) the circumstances of G's older half-brother, B, who was then aged 17 and living with his mother, M….’

The disposal of the application was that

‘[8] In the event Singer J decided that G should live with F (to whose "fundamental devotion to the interests of his daughter" he paid unqualified tribute); that she should have no direct contact and only very limited indirect contact with M; and that M should be prohibited from attempting to make, and F, for his part, should be prohibited from permitting, any other contact with G….’

By 2018 the court no longer knew what was or was not included in the ‘voluminous’ trial bundle that Singer J had had.

Of his judgment, Sir James records that Singer J accepted undertakings from both M and F not to communicate with the media. M did not appeal against any aspect of Singer J’s orders. Thus his findings of fact ‘are not disturbed by the passage of time’. And as Sir James Munby P points out:

‘[11] … the undertaking was expressed as being "until further order" and therefore has to be complied with unless and until the court discharges or modifies it. Being "until further order" it is not in any way affected by G reaching her majority.’

F opposed G being made aware of the family history, at this time. This he said was a matter for him when he – as the only person with effective parental responsibility – thought best. He opposed both applications; by M and by her son, B. M opposed B’s application.

‘Documents on the court file’

The applications turned on to what extent B could see court documents which he had not already seen; and on to what use M could put documents already held by her – or to which she might have access (eg if still held by her lawyers). B, said Sir James, has a right – ‘recognised in part by the common law and guaranteed by [European Convention 1950] Art 8’, to know the truth about his past and about his parents ([15]). He justified this by a wealth of authority including Re X (A Child) (Review of Fact Finding in Care Proceedings) [2016] EWHC 1342 (Fam), [2017] 2 FLR 61 [18]-[19]; Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167 (in certain circumstances the right to obtain from public records information about, one's childhood, development and history and, and Roche v United Kingdom (2005) 42 EHRR 30.

However he centred his grant of an order to B limited to his being permitted to see certain further documents (certain further medical reports and statements from the parents and four further witnesses) to his adaption of the wording of FPR 2010, r 29.12(1), via its source in older adoption rules (see FPR 2010, r 14.24) as giving the court a discretion, to be exercised justly, to give permission for documents to be read taking account also of other factors in [29] as considered further in X (Adopted Child: Access to Court File) [2014] EWFC 33, [2015] 2 FCR 338, [2015] 1 FLR 375.

Meanwhile the mother was not to be released from the undertaking she gave to Singer J, nor be released from the restrictions which applied to her under AJA 1960, s 12(1). The ‘proper forum for debating and exploring [the issues the mother wished to raise were] within the privacy of the family rather than’ in public ([53]).

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