Family law

By David Burrows, David Burrows, Bristol

Confidentiality of family proceedingsClibbery v Allan and anor (2001) The Times, 2 July, Mr Justice MunbyFamily proceedings are entering deeper into the murky waters of where court process and documents may or may not be confidential, buffeted by the cross-currents of the European Convention on Human Rights.

B v United Kingdom, P v United Kingdom (Application Nos 36337/97 and 35974/97) (2001) The Times, 15 May, ECHR (noted in [2001] Gazette, 7 June, 34) dealt with privacy of proceedings and children.

Article 6(1) of the convention provides that a fair trial requires a public hearing, subject to the specific exemption that 'where the interests of juveniles or the private life of the parties so require' press and public may be excluded from a hearing.

In B v UK the ECHR upheld the right of English courts to conduct children proceedings in private.In Clibbery v Allan, Mr Justice Munby characterised the issue before the court as the extent to which proceedings relating to family property or money which contained no children element were confidential.

He rejected the submission that documents which arise in confidential proceedings by definition assume a patina of confidentiality which requires the leave of the court for their disclosure.

In this case it was documents arising in occupation order proceedings.

In the absence of specific statutory authority a party could not be prevented from disclosure.

The judge rejected such statutory authority as had been cited to him, and found that to prevent publication would be in breach of Ms Clibbery's rights under articles 6 and 10 (right to freedom of expression) of the convention.The full judgment of this case will require careful reading.

Four points occur:l There is a distinction to be drawn between documents which arise in the course of proceedings (pleadings, sworn statements, etcetera) and those disclosed under compulsion (Riddick v Thames Board Mills Ltd [1977] QB 881, CA; Harman v Home Office [1983] 1 AC 280, HL).l In each case a balance must be drawn between the competing public interests of disclosing evidence on which proceedings are based and preserving privacy and confidential information (D v NSPCC [1978] AC 171; (1977) FLR Rep 181, HL).l Rule 39.2 of the Civil Procedure Rules 1998 (CPR) provides that a hearing may be in private where it involves 'confidential information (including information relating to personal financial matters)' where publicity would damage confidentiality.

Where documents are disclosed they may only be used outside the proceedings concerned with permission of the court (CPR rule 31.22(1)(b)).

Mr Justice Munby stressed that proceedings in the Family Division and other divisions are not different (Scott v Scott [1912] P 241); yet they are precisely different since relevant procedural rules differ between the family and other civil divisions.l Each case will depend on its own facts (see for example, Lord Denning MR in Riddick): the exceptions for privacy of children and to protect 'the private life of the parties' under article 6(1) will vary from case to case.Taking these factors into account, it would still seem to be prudent in family proceedings for a party - and his adviser - to be wary indeed about disclosing documents or information.

Clibbery by no means gives carte blanche for the disclosure of information in non-children family cases.Weight and effect of allegations and investigation in children enquiries R(S) v Swindon Borough Council and anor (2001) The Times, 27 June, Mr Justice Scott Baker; L and P v Reading Borough Council and Chief Constable of Thames Valley Police [2001] EWCA Civ 346 [2001] 2 FLR 50, CA In the Swindon Borough Council case a man sought judicial review of the local authority's decision to continue its investigations where he had been acquitted of an indecent assault on the child of a woman with whom he had been living.

Because he had been acquitted, said the man, the local authority was not allowed to take the earlier allegations into account.

Not so, said Mr Justice Scott Baker.

Section 47 of the Children Act 1989 required only that the local authority have 'reasonable cause to suspect' likelihood of suffering significant harm.

This, said the judge, might not even require the local authority to consider the man to be an abuser on the balance of probabilities, a concept in any event which had no real relevance in child protection.

The judge considered the case in the light of European Convention on Human Rights which, he held, added nothing.

A local authority's duties remained the same before and after the coming into operation of the Human Rights Act 1998.This case is entirely different from L and P v Reading Borough Council where the investigation by police and social worker was said to have damaged father and child.

Interviews were held improperly with the child and information was wrongly withheld from the father.

On the application of the local authority and the chief constable to strike out the claims of the father and child for damages the Court of Appeal held that both defendants plainly had a claim to answer.

The position of a father in L's position may be thought to be strengthened by the later decision Z and ors v United Kingdom (Application No 29392/95) (2001) The Times, 31 May, ECHR (noted in [2001] Gazette, 14 June, 40).

Since Z and Barrett v Enfield LBC [1999] 2 FLR 426, [1999] 3 WLR 79, HL it will be increasingly difficult for public authorities to strike out claims under CPR rules 3.4(2), 24.2 (no cause of action or prospect of success on a claim; and see article 6(1) of the convention).In the first case the local authority was pursuing its legitimate enquiries as required of them by statute.

In the second it is alleged that, with the police, they pursued enquiries well beyond the point required by statute and caused actionable damage as a result.Renewal of interim care ordersRe B (a Minor) (Interim care orders: Renewal) (2001) The Times, 28 June, Mrs Justice BlackMrs Justice Black must be as familiar as any judge now sitting with the introduction and workings of the Children Act 1989.

When the Act was introduced it was intended that no interim hearing should be a rubber stamping exercise (see for example, The Children Act 1989 Guidance and Regulations Vol 1, Court Orders - still a useful reference 10 years on; but it was recognised that it was not appropriate to go over the evidence each time that such an application was heard.

The court should deal with matters 'by considering any change in the circumstances, any new evidence that may have come to light and any other relevant matter that may cast doubt on the benefit of a new order' (Guidance and Regulations paragraph 3.44).In Re B Mrs Justice Black considered the basis of the making of a renewed interim care order by a district judge who limited evidence to changes of circumstance and the impact of such changes on whether there should be a further interim care order.

By such a means the judge could appraise the matter critically.

A fresh order could be made following such reconsideration.

While it was not the case, said the judge, that reconsideration could only occur with a change of circumstances, a court was entitled to to limit its procedures to look at fresh applications only in the light of such changes.