Children proceedings: control of documents

Francesca Massarella examines a recent appeal concerning the power of the Family Court to control the distribution of its judgments and of other documents filed for the purpose of the proceedings.

The appeal in Re R (Children: Control of Court Documents) [2021] EWCA Civ 162 (Lady Justice King, Lord Justice Peter Jackson & Lady Justice Elisabeth Laing ) arose from an order made following a fact-finding hearing in care proceedings whereby it was directed that the Appellant, R, should not be provided with a physical copy of the judgment or the written submissions made by the parties, but instead a summary of the court’s findings and a redacted version of the judgment, from which explicit sexual references had been removed.

R was the adult brother of two sisters who were subject of the care proceedings, in which he became an intervener. The Judge found that R was a ‘predatory paedophile’ who had raped one of his sisters. By that time, R was serving a sentence of 21 years, after pleading guilty to the oral rape of his own three-year-old daughter, and to taking and sharing photographs of the assault, and to other child pornography offences.

The written evidence covered some 3000 pages. Restrictions were agreed whereby R was not allowed to retain the papers in prison. Instead, R’s lawyers showed him the documents during legal visits. Following oral evidence in March and April 2020, the parties filed written submissions running to 160 pages. In June 2020, the Judge handed down his 91-page fact-finding judgment and R was discharged as an intervener.

R made a request for a copy of the closing submissions prepared on his behalf to be released to him so that he could fully understood what was said on his behalf. In addition, he requested a copy of the judgment. It was submitted on his behalf that the documents could be redacted prior to being sent to R to remove the names of the children that that he had a locked cabinet in his cell where he would keep the documents.

The Judge concluded that:

• “348. Firstly, I am not minded to allow a copy of the closing submissions to be physically retained by R. They contain sensitive details about the sexual abuse allegations. Redaction would be no protection for the children given R would be able to identify the children concerned.
• Secondly, this judgment has unfortunately had to go into careful detail about the sexual abuse allegations and a large amount of the paedophilic messages that R engaged in. He is a convicted paedophile. I am not prepared to allow for this sensitive material about these children to be provided to him to keep in his cell. I also take judicial notice of the fact that sensitive documents relating to the sexual abuse of children is highly prized amongst serving prisoners convicted of the sexual abuse of children. I will not countenance the potential for this material… to be abused in this way.
• It is important that R be made aware of this judgment and my findings. Upon handing down judgment today, I have also made provision for a video-link session to take place today with his intermediary. That will enable his legal team to convey the content of the judgment to him with appropriate support.”

Despite the Judge’s indication, R asked to be given physical copies of the unredacted judgment and of the written closing submissions filed on his behalf and on behalf of the other parties. The Judge gave an extempore ruling, which included the following passages:

• “18. The fact-finding judgment that I provided in these proceedings contains graphic, detailed accounts of sexual abuse, as well as detailed sexualised correspondence between R and others. The content is beyond doubt obscene and perverted. There is, as a result, a considerable level of sensitivity to be attached to this information for a number of reasons. 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.
• [These] are highly vulnerable children. There is a risk pertaining to them, in my judgment, that if their experiences and vulnerability, as identified, were to become widely known, in particular to paedophiles or to people with an unhealthy interest in children, that could potentially place [them] at risk of being targeted or exploited in the future.”

The Judge relied on the court’s general case management powers under Family Procedure Rules, and in particular rules 4.1 and 12.12. As the documents were on the court file, he retained case management jurisdiction in relation to them. The documents had been placed on the court file, and so he retained case management jurisdiction in relation to them. That power did not fall away because R’s role in the case was ending.

The Judge directed himself as to the guidance in Re B, namely, that it is an exceptional course to restrict a litigant’s access to documents and that such a case should require the most anxious, rigorous and vigilant scrutiny.

The Judge was satisfied that in balancing the competing rights of the children, he was satisfied that the balance was properly struck by not allowing R to retain a full copy of the judgment in his prison cell. The Judge directed that a summary of his findings should be prepared and that R should be provided with a redacted and anonymised version of that summary, setting out only those findings that he had made against him.

R appealed on two grounds:

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 gave too much weight to the perceived risks of unlawful dissemination of the material by R in circumstances where there was scant evidence that R had disseminated or attempted to disseminate highly sensitive and/or sexually explicit material which is in his possession (in custody) 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.

Permission was granted to appeal on the second limb only on the basis that it offered the Court of Appeal an opportunity to consider the Family Court’s powers to control the distribution of sensitive material and the principles on which such powers should be exercised.

At [13] Lord Justice Peter Jackson considered the case within its wider context and concluded that there was no doubt that a court hearing family proceedings had the power to control the use to which documents filed for the purpose of the proceedings were put and that the power extended to the withholding of documents from parties where that was necessary. The court had always been, and remained, under a duty to ensure a fair trial and to protect the rights of those who might be affected by the disclosure of information.

When faced with an application to withhold documents or information, the court was required to uphold the rights protected by Articles 6 and 8, and possibly Article 3. In family proceedings, the right to respect for private life will almost inevitably be engaged, but the transmission or preservation of private information in documents was a necessary part of any system of justice. There would however be rare cases where the possession of documents may amount to more than an interference with privacy. In this case, the Judge considered that the use of descriptions of the children’s abuse for the sexual gratification of the abuser and others would amount to subjecting them to degrading treatment within the meaning of Article 3.

The Court of Appeal referred to Rules 29.12 to 29.14 of the Family Procedure Rules. The default position was that parties may obtain physical copies of documents filed or lodged in family proceedings, and that they must be served with a copy of a judgment or an order, but in each case this is subject to the court’s directions.

The power to limit access to documents before and during a hearing can only be used where it is strictly necessary, with the court being rigorous in its examination of the feared harm and careful to counterbalance any resulting disadvantages to ensure a fair trial: Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.

In the present case, the restrictions imposed during and after the trial were not aimed at withholding information but at controlling the physical possession of documents from an individual, though not from his lawyers. The agreed restriction on possession of documents during the trial did not prejudice the effective representation of R’s case and likewise the withholding of documents after the proceedings represented a markedly lesser degree of interference with his rights than arose in Re B and in X and Y (Children) [2018] EWHC 451 (Fam), where a father was discharged from care proceedings altogether.

At [22] Lord Justice Peter Jackson stated that the Judge ‘conducted a conspicuously careful balancing exercise and his conclusion was not only beyond criticism but, in my view, sound.’ The material available that had been and would be available to R amply satisfied his entitlement to a reasoned decision and any further material which was being withheld in pursuance of a legitimate aim. R had everything he needed to understand the Judge’s decision. He should not be allowed to prolong his abuse of these children by being given possession of graphic descriptions of what he had done to them, and he was not to be trusted not to pass the material on to others like him.

Lord Justice Peter Jackson made the following points before dismissing the appeal:

• The circumstances of the case are extreme. Issues of that kind are only likely to arise in the gravest cases. The fact that serious consideration is being given to the protection of rights under Article 3 may be an indicator that one is in that territory.
• I would dispose of the argument that a party ‘owns’ documents filed on his behalf so that he cannot be deprived of them. The document is nothing without the information it contains, and the information falls under the control of the court. In any case, a client does not own a written submission prepared by his counsel, using professional judgment within the scope of the client’s instructions, any more than he owns counsel’s oral submissions to the court.
• It had been argued that the court’s power to control possession of documents ends with the conclusion of the proceedings. I have expressed the view that the court’s powers do not find their origin in the Rules. But even if it were otherwise, one does not have to look far to see powers that clearly outlast the proceedings: for example rule 12.75 and PD12G, which concern the communication of information to permitted persons for specified purposes, or indeed rules 29.12 and 13 themselves, where a direction for non-service of documents will plainly be of continuing effect after the proceedings have ended.
• The Law Society gives guidance to solicitors about the ownership of documents (Practice Note 19 January 2019: Who Owns the File?). However, whatever the document, the solicitor’s duty to the court will override any duty to the client and an order that a document is not to be disclosed or given to any client will bind the solicitor as agent for the client and relieve the solicitor of any professional duty that would otherwise exist.
• Now that R has instructed his solicitor to give him a copy of the trial bundle, we should in my view extend the Judge’s order to include all documents filed within the proceedings, resolving the position in which his solicitors find themselves. That course was not opposed by any of the parties if the appeal itself were to fail.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.