A Local Authority v The mother
| Jurisdiction | England & Wales |
| Judge | Owens |
| Judgment Date | 12 June 2023 |
| Neutral Citation | [2023] EWFC 90 |
| Court | Family Court |
| Docket Number | CASE NO: OX22C50074 |
and
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[2023] EWFC 90
HER HONOUR JUDGE Owens
CASE NO: OX22C50074
IN THE FAMILY COURT SITTING AT OXFORD
Representation:
For the Applicant: Mr Perry
For the mother, First Respondent: Mr Walthall
For the father, Second Respondent: Miss Sparrow
For A, Third Respondent acting through their Children's Guardian: Dr Gatland
This judgment is being handed down [in private] on 12 th June 2023. It consists of 16 pages and has been signed and dated by the Judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the child and the members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.
CASE MANAGEMENT – DISCLOSURE APPLICATION
The father has applied for disclosure of various pieces of information both within the bundle and without by application dated 16 th May 2023 (B169). It is accompanied by a schedule duplicating initially the provisions of PD 12G (information that can be conveyed and to whom for which purposes without the need for a court order), and then a further schedule setting out in detail what ‘data’ (to use the terminology in that schedule) is sought to be disclosed, to whom, and for what purpose (C163-C173). There is also a statement in support provided by the father which is in the bundle at C157-C163, though this is couched in general terms and does not identify what documents are sought to be disclosed, nor address any potential impact (positive or negative) on A's welfare.
The Local Authority does not oppose some disclosure to a legally qualified individual for the purposes of the father obtaining legal advice in relation to other potential avenues of redress but is concerned that wider disclosure would risk identification of A and would thus not be in A's welfare interests.
The mother's concern about widespread disclosure, even with some redaction, is that much of the evidence contains deeply distressing details about the mother, and may risk identification of A.
The Guardian is concerned that granting the full disclosure sought by the father risks identifying A and is thus potentially harmful to A's welfare and interests, especially where that disclosure is to a wide group of individuals and the press and may result in A's peers being able to identify A as the subject of these proceedings.
At their suggestion, I heard submissions from all parties about this application on the afternoon of day 1 of the final hearing during a hiatus in the timetable caused by lack of witness availability.
I will deal with each aspect of the detailed schedule below, but first need to set out the legal parameters.
When considering whether to order disclosure, following Re EC (Disclosure of Material) [1996] 2 FLR 725 the following factors must be taken into account, albeit as this case considered disclosure to or from criminal proceedings there must be some necessary modification where the application does not specifically relate to disclosure into criminal proceedings:
a) The welfare and the interest of the child concerned and of any other children generally;
b) The maintenance of confidentiality in children cases and the importance of encouraging frankness;
c) The public interest in the administration of justice and the prosecution of serious crime;
d) The gravity of the alleged offence and the relevance of the evidence to it;
e) The desirability of co-operation between various agencies concerned with the welfare of the children;
f) In cases where s98(2) applied fairness to the person who had incriminated himself and any others affected by the incriminating statement
g) Any other material disclosure which had already taken place.
I have also had regard to the case of M (A Child) [2021] EWCA Civ 437 which confirmed that transparency is helpful and potentially of benefit to those involved in Family proceedings and the general public more widely. Transparency in the Family court currently exists both in a specific pilot form which has been underway since 2018 at particular courts, and more widely by virtue of rule 27.11 which permits accredited members of the press to attend proceedings held in private but which does not permit them access to court documents without permission of the court and does not permit reporting of proceedings in any way that would breach the overall requirement of confidentiality imposed by s97(2) of the Children Act 1989. The aim of the steps that are already underway with regard to increased openness in the Family courts is to enable the public and/or the press to have a proper understanding of the court hearings themselves. Under the updated Guidance issued by the President of the Family Division in relation to allocation or transfer of proceedings to the High Court, issues as to publicity (identification of a child or restriction on publication or injunctions seeking to restrict the freedom of the media where this is the principal relief sought) must be commenced in the Family Division. Ditto any application which requires the inherent jurisdiction.
Item one on the detailed schedule is disclosure to Any solicitor, barrister, or other qualified legal adviser – this request is for any information relating to the proceedings, especially relating to the original threshold and statement of expectations. The stated purpose (slightly paraphrased for brevity's sake) is to enable the father to take advice and obtain representation with regard to applications under the Children Act 1989, Family Law Act 1996, or the Equalities Act 2010 on behalf of the father or children for whom the father holds parental responsibility; and to ensure that issues in relation gender harm and discrimination within the court proceedings “which need to be in the public interest because of gender genocide studies” (C165). I'm not sure why it is not possible for the father's current solicitors to provide advice regarding any applications under the Children Act 1989 or the Family Law Act 1996 since they are Family solicitors and have advised and assisted the father in these public law proceedings. As a Family court considering applications under the Children Act, this court would have had jurisdiction to consider other Family applications, but none have been made. Similarly, this court has jurisdiction to consider any order under the Children Act 1989 but I am not asked to consider any other order than a Supervision Order or no order on the case that the father has made including final submissions. The application seems therefore to be more properly focussed on the need to take advice in relation to areas that fall outside of the expertise of the firm from the submissions made by Miss Sparrow. This item is largely not opposed by the respondents and, assuming that any such disclosure is limited to the specified purpose (ie obtaining the necessary legal advice in relation to aspects that fall outside of the expertise of father's current solicitors), such disclosure in general does not seem problematic and would not appear to be adverse to A's welfare interests. It seems to be accepted by the father through Miss Sparrow's submissions that details of third parties such as the mother's current partner, and details in relation to A, should not form part of any such disclosure allowed. It is accepted by the Local Authority and the Guardian that, with the removal of identifying information in relation to A, the mother and third parties, there is no risk to A's welfare by permitting this disclosure. Applications under the HRA or the Equalities Act are also matters which may further the administration of justice generally, having noted that aspects of the matters which concern the father so deeply fall outside the jurisdiction of the Family Court and may instead potentially be subject to other forms of redress including under these pieces of legislation. I will therefore grant disclosure of documents from within the final hearing bundle to any solicitor, barrister or other qualified legal adviser solely for the purposes of providing advice and assistance in relation to any application under the HRA or the Equalities Act, providing that such disclosure does not identify A, the mother, or any third party including professionals involved with the family (given the lack of notice to any third party by the applicant), and making it clear that this does not grant permission for such documents to be used in connection with proceedings arising in a way that would lead to the identification of A, the mother or any third party. With regard to any other documents outside of the court bundle, I am not assisted by any identification of what these may be in this part of the schedule. Nor was I assisted by any clear details being provided by Miss Sparrow in submissions. Somewhat ironically, therefore, I am asked to provide a degree of...
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