Court’s Powers to Control Use of Documents

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 used.  That power extended to the withholding of documents from parties where that was necessary: R (Children: Control of Court Documents) [2021] EWCA Civ 162 Lady Justice King, Peter Jackson LJ, Lady Justice Elisabeth Laing

That was a matter of law, not merely of procedure, although the power was recognised in the Rules.

Section 6 of the Human Rights Act 1998, which prevented a public authority from acting incompatibly with Convention rights, provided further support and a structured framework for the exercise of that power.

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 would almost inevitably be engaged, but the transmission and 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 the present 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.

Whether that was so would depend on the circumstances: Kudla v Poland (2000) 35 EHRR 198 at 91-92.

The fact that there were cases in which breach of Article 3 came into question made it self-evident that the court was entitled, and may be obliged, to control the possession and distribution of documentation. The existence of that power was reflected in the rules.

The default position in the Rules 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 was subject to the court’s directions.

The power to limit access to documents before and during a hearing could only be used where it was 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.

Restrictions imposed during and after trial in the present case were not aimed at withholding information but at controlling physical possession of documents from an individual, though not from his lawyers.  The restriction did not prejudice the effective presentation of R’s case.

R’s appeal against prohibiting the disclosure of the full fact-finding judgment and/or written submissions of each party to R, gave the court an opportunity to consider the powers of the Family Court to control the distribution of sensitive material and the principles on which such powers should be exercised.

Refusing R’s appeal, the Court of Appeal observed that the Judge conducted a conspicuously careful balancing exercise and his conclusion was not only beyond criticism but sound.

The Judge found that R was a predatory paedophile who had seriously abused one of his sisters and his own three-year-old daughter.  He was a serving prisoner, having received a sentence of 21 years, made up of 16 years imprisonment with an extended licence period of 5 years.

The material that had been and would be available to R satisfied his entitlement to a reasoned decision, and any further material was being withheld in pursuance of a legitimate aim.

In plain language, R had everything he needed to understand the Judge’s decision.

He should not be allowed to prolong his abuse of 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 on the material to others like him.