18 St John Street Family Department member Fiona Holloran takes a look at the complex issue of disclosure in family proceedings.
Disclosure in proceedings relating to FMPO/FGM.
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- 1. Disclosure of sensitive information and the source of it is a difficult issue in family proceedings where the primary concern is the welfare of the child rather than the safety and/or wellbeing of the person from whom or about whom information is being disclosed. Often the two are inextricably linked rendering the balancing exercise between the child’s interests and the right to a fair trial on the part of a respondent particularly difficult.
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- 2. This is never more evident than in cases of forced marriage or female genital mutilation where it is often the case that the grounds can only be established by reference to information from an anonymous source. Often the source is the child themselves or a close family member who has taken a brave step to protect the potential victim. Often they remain in a vulnerable position within the family and any suspicion that they have reported concerns would have serious repercussions.
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- 3. In those circumstances an application should be made for a separate disclosure hearing. This should be heard in the High Court. A copy of the evidence to be relied upon should be provided to the judge hearing the matter but not to the legal representatives of those representing the respondent parties, for obvious reasons.
- 4. In Re M (disclosure) {1998} 2 FLR 1028 Thorpe LJ set out the law as it stood at the time:
(a) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.
(b) The court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.
(c) If it would the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interests of the child and having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.
(d) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration and its strength in the circumstances of the case, against the interest of the parent or other party and having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of material to the issues in the case.
(e) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child and should order non-disclosure only when the case for doing so is compelling.
- 5. The general principles in relation to disclosure post 1998 and the implementation of the Human Rights Act are succinctly set out by Munby J (as he then was) in Re B (disclosure to other parties) {2001} 2 FLR 1017. Namely:
(a) Whilst an entitlement to a fair trial under ECHR Art 6 is absolute, that does mean that a party has an absolute and unqualified right to see all the documents.
(b) The advent of the Human Rights Act 1998 means it is no longer the case that the only interests capable of denying a litigant access to documents are the interests of the children involved in the litigation. That the interests of anyone else who is involved, whether as a victim, party or witness and who can demonstrate that their Article 8 rights are sufficiently engaged, can also have that effect.
(c) A limited qualification of the right to see the documents may be accessed but if directed towards a clear and proper objective. Non-disclosure must be limited to what the situation imperatively demands and is justified only when the case is compelling or strictly necessary, with the court in rigorous in the examination of the feared harm and any difficulty caused to the litigant counterbalanced by procedures designed to ensure a fair trial.
- 6. The position in relation to FMPO and FGMPO is set out in the FPR Part 11 which makes specific provision for applications under Part 4a Family Law Act 1996.
- Part 11.7 provides:
- (2) The court may direct the withholding of any submissions made, or any evidence adduced, for or at any hearing in proceedings to which this Part applies –
(a) in order to protect the subject of the proceedings or any other person; or
(b) for any other good reason.
7. In A Chief Constable and another v YK Sir Nicholas Wall, President, (as he the was) distinguished applications for FMPOs by reference to the Act:
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- 17. Two aspects of the Act are immediately striking. The first is that it is very widely drawn. It is extraterritorial in its application and orders may be both made and discharged ex parte. Secondly the Act plainly creates a protective/injunctive jurisdiction. It’s object is to prevent forced marriages by protecting those who may be or have been forced into marriage. The position in relation to respondents, moreover, seems to me robust and the only criterion for protecting a respondent to such an order appears in section 63D (3) where the order is made ex parte and the court is required to give any respondent an opportunity to make representations. That opportunity must be as soon as just and convenient (63D4(a)) and at an on notice hearing (63D4(b)). The order otherwise lasts until varied or discharged.
- 18. Although the court is required to take into account all the circumstances when deciding whether or not to make an order there is nothing in the Act which requires the court to apply any given criteria beyond the matters identified in section 63A(2). There is, moreover, nothing in the Act to stop the court Acting on hearsay evidence, or information provided to it by the police which has not been disclosed to the respondents.
- 19. Thus the highest the case is put for any respondents are the requirements where there is an ex parte order; (1) for service and; (2) for the respondent to be given the opportunity to make representations. In other words there is no requirement for them to be a conventional hearing at which the respondents are alerted to the case against them and have the opportunity to rebut it. These are issues to which I shall need to return later in this judgment.
- 8. Later in his judgment he espoused a robust view:
- 99. So far as disclosure simplicitor is concerned, as I have already made clear, it does not seem to me that special advocates have any role to play. The court, in my judgment, is entitled to take the view that any forced marriage is a breach of human rights and that where – as here – a responsible body such as the police have credible information sufficient to invoke the courts jurisdiction and form the basis of court orders, an issue arises which – in the context of the Act and the jurisdiction it provides – entitles the court to act and make its orders, irrespective of the truth or otherwise of the information which has led to the application.
- 100. The difficulties which arise – or may arise – coming to focus with an application is made to set the order or orders aside. In such circumstances, I fully recognise that factual issues may arise which the court is required to investigate. However, not only is that not this case, but even if it were it does not seem to me that special advocates have any role to play. The police – or the alleged victim – argue that certain information likely to lead to a breach of the right provided by ECHR articles 2, 3 or 8 should not be disclosed. Balanced against that or the ECHR our article 6 (and possibly 8) rights of the person is subject to the order given the protective nature of the courts jurisdiction, it seems to me that the court can decide the issue of whether or not the order should stand without either detailed investigation of the factual issues or the intervention of special advocates.
- 101. Furthermore, when I come to analyse the ECHR Article 6 rights of the parties affected, I am tempted to the view that ECHR Article 6 is not engaged at all. Article 6 protects a party’s right to a fair trial in the determination of his civil rights and obligations. To force a person into marriage is manifestly not a civil right, still less and obligation. In my view, accordingly, it is arguable that ECHR article 6 is not engaged in an application for an FMPO. In any event, since the court permits exercise of jurisdiction ex parte and on the basis of the applicant’s belief, it does not seem to me that a respondents right to reply to set the sort order aside entitles him or her to access to information which, if abused, lead to serious breaches of the rights of the person to be protected.
- 102. Any application to set aside the a FMPO, however is likely to engage ECHR Article 6. A person against whom the order has been made may well deny forcing ‘A’ into marriage – or any intention of doing so and may assert that the order represents a breach of the ECHR article 8 right to respect for my family life in arranging a marriage for their daughter. We are thus back to the dichotomy identified in paragraph 9 of this judgment. Assuming therefore that ECHR Article 6 is engaged, it nonetheless seems to me the right to a fair trial manifestly does not entitle a party either to see all the documents in the case or to have all the information in the possession of the court – see Munby J’s analysis in Re B.
- 9. This position may well fall to be challenged where the application itself is not opposed but the ancillary protective orders e.g. a restriction on travel are challenged. In such circumstances it may be argued that more fundamental aspects of family life are being infringed or restricted and the right to have knowledge of the basis upon which those restrictions are deemed to be necessary is more pertinent. As yet this aspect does not appear to have been considered by the courts as a specific issue. In those circumstances the considerations are likely to be more finely balanced with the welfare of the child once more becoming the paramount consideration in the more conventional sense.
Fiona Holloran practises exclusively in the area of Family Law. Her practice covers the full range of Public and Private Law applications and she represents parents, children and local authorities in cases involving all aspects of child care law.