Hearing documents for non-parties
Finally this series applies the law, as so far defined, to non-parties and family proceedings. Part 1 considered who may attend family courts (in addition to the parties, their representatives etc). Part 2 deals with the open court principle and its importance for documents for non-parties. Part 3 dealt with the recent case on this subject especially Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)  EWCA Civ 1795 (‘Cape Intermediate v Dring’). This Part looks at how the law, as explained in the first three Parts, applies to documents and to non-parties in family proceedings: first, how it applies to non-parties who attend private family hearings; or, secondly, to those who may want to know more about such cases afterwards (eg journalists, lawyers, academics or family members – even perhaps a child involved, as the child gets older).
In this series, documents are categorised as:
- Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
- Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
- Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules and any order of the court.
- Trial documents – Documents prepared for the judge and at a court hearing.
Family Procedure Rules 2010 (FPR 2010) does not deal with the subject of release of documents beyond r 29.12 which permits inspection (ie photocopying on payment of an appropriate fee) of documents with permission of the court. This is likely to be dealt with at common law and in the inherent jurisdiction of the court as defined by Hamblen LJ in Cape Intermediate v Dring.
Family proceedings courts
As stressed in Part 1 there are three categories of family courts hearing to which the question of release of documents to non-parties applies. Each is likely to involve application of the law of the law in different ways, though exactly how has not been clearly defined. The categories of hearing are:
- Open court hearings (eg divorce, committal proceedings, domestic abuse cases under Family Law Act 1996 Part 4). Open justice principles apply to these hearings and the same rules are likely to apply as explained in Cape Intermediate v Dring.
- Hearings in private where media representatives and other can attend (r 27.11(2)(f)-(g)): so long as anonymity is preserved the Cape Intermediate rules could apply.
- Other hearings in private (see eg Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 56).
Part 3 sets out the documents which non-parties can expect to see in civil – ie almost invariably, open court – proceedings. What should non-parties expect to see in private family hearings? Do the same rules, subject to privacy/publication restrictions, apply for non-parties who attend family courts under r 27.11(2)(f)-(g)?
Release of documents in private family court hearings
Privacy and publication restrictions in family proceedings centre on two strands in law:
- The common law position as summarised in Scott & Anor v Scott  UKHL 2,  AC 417 and succeeding case law; and
- Statutory contempt proceedings in relation to certain types of case, notably children cases, in Administration of Justice Act 1960 s 12(1), namely:
‘12 Publication of information relating to proceedings in private
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the [case of children proceedings]…’
Any restriction must be judged against the common law open justice principle. Because the parties do not want material released to non-parties does not mean that the court should not give permission for inspection, whether at common law or under r 29.12. Munby J emphasised this in Spencer v Spencer  EWHC 1529 (Fam),  2 FLR 1416 when he said:
‘ The fact that both parties join in making the application is not, of course, any reason why the application should succeed. If anything, quite the contrary – see the observation of Sir Christopher Staughton in Ex parte P (1998) The Times, 31 March, quoted with approval by Lord Woolf MR in R v Legal Aid Board ex parte Kaim Todner  QB 966,  3 WLR 925…: “When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.”’
What is quite clear is that the law permits release to the media and others of documents in Family Law Act 1996 Pt 4 (non-molestation and occupation orders) as explained by the Court of Appeal in Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565 whatever FPR 2010 r 29.12 might say: a rule cannot alter the common law (British South Africa Co v Companhia de Mocambique  AC 602 per Lord Herschell LC at 628).
Documents for release under the court’s inherent jurisdiction
In Cape Intermediate v Dring (as further explained in Part 3) Hamblen LJ defines the documents which the court has an inherent jurisdiction to consider for release to non-parties (ie beyond its powers in CPR 1998 r 5.4C). These are the following:
- Skeleton arguments and ‘other advocates documents provided’ to assist the court ().
- Witness statements: under CPR 1998 r 32.13 non-parties are entitled to inspect witness statements. There is no equivalent rule in FPR 2010; but r 32.13 may be said to summarise the position at common law.
- Experts reports: the same applies as for expert’s reports (); but –
- Documents read or treated as read in court – CPR 1998 r 31.22 ().
- Other documents to meet the open justice principle ().
As explained in Part 3 the cases considered there are likely to be authority for a prohibition on release of the court bundle in full, and of exhibits to statements and reports (even where such exhibits are referred to).
Why should material be released?
If the criterion for exercise of its jurisdiction by the family courts is to enable those who attend court to understand the proceedings then, subject to non-parties’ compliance with privacy restrictions (eg Administration of Justice Act 1960 s 12(1)), the question must be: why should not the non-parties have access to documents to enable them to understand what is happening. Release of the Cape Intermediate v Dring list of types of document must, in most family cases, go a long way to telling a non-party what is going on; or telling a non-party looking into the case, who has also read any judgement (anonymised in family cases), what happened.
This will enable courts in most cases to pay full regard to the words of Lord Woolf MR (italicised above), and to what was said by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (cited by Hamblen LJ at ):
‘ The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc  4 All ER 498 Lord Bingham referred to the need to give appropriate weight both to efficiency and to openness of justice as the court’s practice develops. He observed that public access to documents referred to in open court might be necessary. In my view the time has come for the courts to acknowledge that in some cases it is indeed necessary.’
If the common law permits release to non-parties of documents for civil proceedings, the family courts will need to answer, surely, why they should not do the same for non-parties who are permitted to attend private court hearings? (The case has surely been made for Family Law Act 1996 Pt 4 cases (see Clibbery v Allan (above)?) Perhaps the same applies, for those non-parties who, for good reason (per Guardian News), want to see material listed by Hamblen LJ after a hearing.