Introduction of relevant material by non-parties into family proceedings

This short series of posts is prompted by reflections on Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol (published by Crown Prosecution Service (CPS) and in force since 1 March 2024: ) (“the Protocol”) which is designed to enable prompt communication between the police and local authority lawyers (and any unrepresented parties) in children proceedings. This series seeks to widen the subject:

  • Part 1 dealt mostly with the meaning and context of its use of the overused, and abused, term “disclosure”
  • This post widens and defines the concept of introduction of relevant material from non-parties into family proceedings as a whole (not only children proceedings).
  • Part 3 will define the procedural context for release of material to non-parties (eg the police) from family proceedings.

But first, a glossary of terms for introduction of information into and release from family proceedings.

A glossary of relevant terms

The term “disclosure” replaced “discovery”, which then disappeared – as a legal term – from civil proceedings (including family proceedings) with a stroke of Lord Woolf’s pen on introduction of the Civil Procedure Rules 1998 (CPR) in April 1999 (as explained in Part 1). To the confusion of many – as this series seeks to show – “disclosure” became the term which applied in family proceedings from April 2011, when FPR 2010 came into force.

  • Disclosure – disclosure applies to documents and is defined by CPR rr 31.2 and 31.3 and, in almost exactly the same terms, by FPR 2010 r 21.1. A party to proceedings states what relevant documents they hold (including those covered by legal professional privilege or other forms of confidentiality as stated in ICLR glossary para 2). It emphatically does not mean passing on of documents – hence the requirement to state the existence of confidential (including privileged) documents. The protocol’s use of “disclosure” means “communication” or “publication” of information or other material as explained shortly. As will be seen (Senior Courts Act 1981 s 34 (SCA 1981; below) the legislature seems to have anticipated Lord Woolf’s disclosure terminology.
  • Publication of information – is the term used for release of otherwise private documents and information from proceedings held in private and as defined by Administration of Justice Act 1960 (AJA 1960) s 12(1) and (4). The term was explained as Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, [2014] 2 FCR 284 Sir James Munby P.
  • Communication of information – defines release or publication of information from family proceedings. It is used by FPR 2010 Part 12, Chapter 7 and as explained later (ie rr 12.73 and 12.75) and PD12G to describe release of material about “family proceedings” (as r 12.73 says, but it applies mostly – ie it is included in FPR 2010 Part 12 – to children proceedings) to non-parties or their advisers or such organisations as the Legal Aid Agency and so on, and to exempt those who release from the contempt provisions of AJA 1960 s 12(1). AJA 1960 s 12(4) (as now amended) enables “rules of court” to exempt those who pass on information from proceedings referred to in s 12(1) from its contempt provisions.
  • Inspection and production of documents – CPR 1998 Pt 31 and FPR 2010 r 21.1(2) use “inspection” of documents to mean “production” of copies. These documents will be included in any trial bundle for the court at an interim or final hearing.
  • Sensitive material – occurs in the protocol and is cross-referenced to the police and prosecution 2020 Code of Practice for “recording, retaining and revealing” documents in an investigation. The term will be familiar to those who deal with Justice and Security Act 2013. Section 6(11) of that Act defines “sensitive material” as such as “the disclosure of which would be damaging to the interests of national security”. The 2020 Code at para 6.14 describes what must go in a “sensitive schedule” and why. The list is lengthy, it is much wider than that in s 6(11) and includes “material given in confidence” or which relates to children where provided by a local authority or “relating to the private life of a witness”.
  • Implied undertaking – is now defined, for civil proceedings (and perhaps for family proceedings) by CPR r 31.22 (and see CPIA 1996 s 17, later), is an undertaking implied by common law originally to limit the extent to which a party to civil proceedings (P) can pass on (eg to the press or Inland Revenue) material which the law compelled another party to the case to produce to P (an old version of the law was summarised in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338: the joint speech of Lords Scarman and Simon led to the reform of the law in r 31.22).
  • Public interest immunity – is a rule of public (ie administrative) law that ‘interests of the state must not be put in jeopardy by production [note Lord Simon’s correct terminology] of documents’ (Duncan v Cammell Laird [1942] AC 624 at 641).

Introduction of material from non-parties into family proceedings

SCA 1981 ss 33 (prior to the issue of proceedings) and 34 (during the currency of proceedings) enables to the court, on application by a party to proceedings in accordance with court rules, to order a non-party to provide ‘inspection’ of material to the applicant (eg s 34(2)). This post will concentrate on s 34.

“34 Power of High Court to order disclosure of documents etc

(2) On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court [and the family court: see s 34(5)] shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim—

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—

(i) to the applicant’s legal advisers; or

(ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant….

(4)The preceding provisions of this section are without prejudice to the exercise by the High Court of any power to make orders which is exercisable apart from those provisions.”

As can be seen, s 34(2) specifically requires that application be made in accordance with court rules. In practice there are also common law circumstances where non-parties can be required to introduce documents or information into proceedings (eg Norwich Pharmacal (see below)). FPR 2010 r 21.2 (reproducing exactly CPR r 31.17) deals with applications under s 34 and includes the following:

“(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings….

(3) The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs…”

Examples of circumstances of where disclosure including under s 34 are permitted:

  • Application to court for disclosure against a non-party under SCA 1981 s 33(2) (pre-action) and 34(2) (during proceedings, as above);
  • Application under Bankers’ Book Evidence Act 1879 s 7 (obtaining disclosure direct from a bank);
  • Applications in respect of a child under Family Law Act 1996 s 33 and CA 1989 ss 48 and 50; and
  • Orders under Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC 133 (and as explained later).

To this list can be added the witness summons which requires production of documents (see FPR 2010 r 24.2(1)(b)); but subject to that, sources (eg Civil Procedure: the “White Book” (at para 31.17.1) and other text books) agree that the list of relevant statutes is closed to the limited references above.

Costs of non-party production

Paragraph 1.9 of the protocol deals with police costs payable on “any request for police disclosure in family proceedings by litigants in person” (it is not clear why only litigants in person are singled out). In a bold assertion the protocol says:

“Requests [by litigants in person for production of material by the police] will require an applicant to undertake to pay the reasonable costs of the police in providing disclosure and that material disclosed will be used for the purposes of the Family Court proceedings only, and will be held securely at all times.”

To require such an undertaking is misleading. It overlooks the underlying costs law. The applicable rule is indeed CPR r 46.1, which applies also to family proceedings; and it is that any respondent to a non-party production order can indeed generally expect to have costs paid by the applicant (r 46.1(2)); though (by r 46.1(3) “the court may make a different order, having regard to all the circumstances, including –

“(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

“(b) whether the parties to the application have complied with any relevant pre-action protocol.”

For example, in Jofa Ltd v Benherst Finance Ltd [2019] EWCA Civ 899; [2020] 1 All ER 849 the Court of Appeal allowed an appeal of a small respondent company that it should pay part of a Norwich Pharmacal applicant’s costs. In Sparkes v London Pension Funds Authority [2021] EWHC 1265 (QB) (on an application for an order under CPR r 31.7: parallel of FPR 2010 r 21.2) Murray J ordered an unhelpful respondent non-party to pay costs of production of documents “necessary in order to dispose fairly of the claim and/or to save costs”. As Murray J concluded:

“[56] In this case, I consider that it is appropriate to make a different order in relation to costs [per r 46.1(3)]. The Trust has not put forward any good reason why, from the end of October 2019 onwards it failed to engage with the appellant’s reasonable and several times repeated request for disclosure, which included reimbursing the Trust for its copying costs or attending to conduct a physical inspection, further minimising cost to the Trust.”

Further there is abundant case law to point out that costs orders are rare in children proceedings – if the application is in a child case which may often be the case. That said, if the police, or some other non-party (in Norwich Pharmacal it was the Inland Revenue) are unhelpful in production of material, they might be expected to pay their own costs, or even those of the applicant.

Senior Courts Act 1981 s 34

Provided that disclosure by the non-party is in accordance with the general principles above (eg as to relevance) then, if it is necessary to dispose fairly of proceedings or to save costs (r 21.2(3)), production of material may be ordered (eg from HMRC, accountants, lawyers, medical advisers etc); and see Frankson v Home Office; Johns v Home Office  [2003] EWCA Civ 655; [2003] 1 WLR 1952, CA at [9]:

“Many and varied circumstances are envisaged [by CPR 1998 r 31.17 in that case]. Examples for production include records held by local authorities about children, police accident reports in road traffic cases and documents held by bodies such as the Health and Safety Executive, hospitals and so forth. It is important to emphasise that disclosure is sought against the commissioner [of police, in that case] as a non-party to the proceedings and it is disclosure against non-parties to which CPR r 31.17 is directed.”

Re L (Third Party Disclosure Order: Her Majesty’s Prison and Probation Service) [2022] EWHC 127 (Fam), [2022] 1 WLR 2835, [2022] 2 FLR 575 (24 January 2022) concerned care proceedings (Children Act 1989 (CA 1989) Part 4) where the extent of the father’s radicalisation was unclear. A non-party production advocate instructed by Secretary of State for Justice (SSJ) proposed – accepted by Cobb J – that in future, parties seeking production from HMPPS in CA 1989 Part 4 proceedings should proceed as follows:

  • the applicant for non-party production should serve the application (and order if any) on the SSJ by the Government Legal Department (GLD). The GLD has expressed itself willing to accept service of court orders and applications for such orders in the GLD “new proceedings” inbox: NewProceedings@governmentlegal.gov.uk;
  • the application should be served on the intended government department recipient (in this case HMPPS) which would still be the primary and obligatory point of service;
  • any request for disclosure on a “rolling basis” (production of further material as it arises) should be made explicitly clear in the application or in the supporting draft order (FPR 2010 r 18.7(1)(a));
  • any correspondence (ie not court orders or applications for court orders), should continue to be addressed exclusively to the intended recipient (eg HMPPS);
  • any requests for non-party production which are not accompanied by any application should be sent to the person or body believed to hold the relevant material (ie HMPPS here), and not to the GLD.

At [16] Cobb J approved a list containing the SSJ suggestions as to information which would be of value to a recipients of the non-party production application (eg GLD and HMPPS) such as the case number, the order sought, a date of sentencing of the individual concerned and so on. An application in family proceedings can be in the family proceedings in question by the FPR 2010 Part 18 procedure, for interim orders; or if under SCA 1981 s 33(2) or for a Norwich Pharmacal order, then as a free-standing application under FPR 2010 Part 19.

Whereabouts of a child

The High Court (and the family court: see per Matrimonial and Family Proceedings Act 1984 s 31E(1)) has an inherent power to order information to be provided from non-parties, quite apart from the statutory powers of the court (Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, Munby LJ sitting as a High Court judge at [36]). Application for an order under the inherent jurisdiction can be made without notice (FPR 2010 r 20.4) and on an emergency basis in appropriate circumstances.

The statutory jurisdiction of the family courts to order production of information concerning the whereabouts of a child are set out in FLA 1986 s 33 procedurally is dealt with under r 21.2. Section 33 deals with the whereabouts of children in proceedings mostly CA 1989 Part 2 (“private law”) and adoption (as defined in FLA 1986 s 1) and (as relevant here) says, at s 33(1) and under the heading “Power to order disclosure of child’s whereabouts”:

“Where in proceedings for or relating to a Part I order [ie per FLA 1986 s 1] in respect of a child there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.”

The address of a ward (and probably of a child) held by a solicitor is not covered by any form of legal professional privilege or confidentiality as against a court order (Ramsbotham v Senior (1869) LR 8 Eq 575; FLR Rep 591, Sir Richard Malins V-C; Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam); [2010] 1 FLR 1048 (7 October 2009), McFarlane J).

CA 1989 ss 48 and 50 each provide family courts with powers to order that information be provided as to the whereabouts of children who may be in need of emergency protection or who it is thought have been abducted and in respect of whom the court has ordered recovery. In each case, the orders for providing information are ancillary to existing children proceedings.

A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (Munby J) and Re HM (Vulnerable Adult: Abduction) (above) recall that any court under the above statutory child law provisions must respect, for example, AJA 1960 s 12(1)(a) (above). As Munby LJ explains: the inherent jurisdiction of the High Court is limited to such rare examples as jurisdiction under Norwich Pharmacal (above) and to direction of production of information as to the location of a missing child (see Re HM (above)). Failing that, on application by a party, the court can require information to be produced by non-parties in response to a witness summons (FPR 2010 r 24.2(1)(b); a separate aspect of the court’s jurisdiction to that under review in this post).

Be wary of statutory limits…

As with its 2013 version, the 2024 protocol for “disclosure” seems to assume that the police can be compelled to produce documents into care proceedings (see eg Southwark LBC v US [2017] EWHC 3707 (Fam) and Lancashire County Council v A [2018] EWHC 1819 (Fam), [2018] 4 WLR 112 (2 July 2018), Knowles J). These cases do not to take into account FPR 2010 r 21.2 at all (as indeed seems to be the case with the 2024 protocol). For example, Knowles J deliberately excludes the wording of FPR 2010 r 21.2(1) when she sets out the rule in her judgment. Rule 21.2 (like CPR 1998 r 31.17) clearly says that application can be “made to the [family] court under any Act for disclosure” (emphasis added); and the more or less closed list of those Acts is set out above. Certainly there is no room I n law for a 2024 Protocol. We must assume she was not referred to the full rule, or did not herself read it.

In the Lancashire CC case (above) and in the period covered by the previous (ie 2013) protocol Knowles J issued what she terms “not judicial guidance” (at [6]). It was a case where the police had been dilatory in producing material when requested. Knowles J included in her non-guidance the following (in [11]):

“D. The family court may request disclosure from the local authority of material held by it, relating to the criminal case. The local authority will notify the CPS (or the police if criminal proceedings have not commenced) as soon as reasonably practicable. Where the police and/or the CPS object to disclosure, they will make appropriate and timely representations to the family court explaining why such disclosure might be capable of prejudicing the criminal proceedings or investigation.”

This conflates a number of steps in the process. As can be seen from the case citation, it ignores the statutory source steps the court must take to require a non-party – like the police – to communicate (to use the FPR 2010 r 12.73 verb) material into any family proceedings; or, as in this case, into children proceedings. This is not to downplay the importance of ensuring all material relevant to the welfare of a child is before the family courts; but this post submits it must be done according to any applicable statute law (ie SCA 1981 s 34(2) as in this case) .

Readers of Part 1 may recall that sources for the 2024 protocol were explained, and that these included:

The first of these is a statutory code, in accordance with Criminal Procedure and Investigation Act 1996 s 23(1). The 2024 protocol must be read subject to it; and it will be recalled that a year after the 2013 protocol family courts legislation was extensively reformed (setting up the Family Court in Matrimonial and Family Proceedings Act 1984 Part 4A) but Parliament took no steps to provide for a similar statutory code for production into family proceedings. How eloquent is that silence; or is it just carelessness (for the ranking of practice directions and other sub-delegated legislation, see Where have all the practice directions gone?

Part 3 of this short series will consider the procedural context for release of material to non-parties (eg the police) from family proceedings; or where release may be denied or otherwise controlled by public interest immunity.

Featured image: Photo by Gabrielle Henderson on Unsplash