In the Matter of G (A Child) (transparency)

B applied to obtain documents from the court file about a private law case that was tried in 2002 concerning his family. The 2002 trial concerned a dispute between  B’s mother (M) and a father (F) in relation to their little daughter (G) who was then two years old. The trial judge, Singer J, had to consider in some detail the circumstances of B, who was G’s older half-brother and was then aged 17.

Singer J decided that G should live with F and that G should have no direct contact and only very limited indirect contact with M. Contact between B and G broke down in 2005. M has since 2002 played no part in the upbringing of G.

M and F gave undertakings in 2002 not to communicate with the media about the case. Singer J also made provision in 2002 for certain limited disclosure of his judgment to B.

The other application, by B’s mother M, was for permission to disclose information about that case to the world at large so that she could campaign publicly about her innocence of findings made in the 2002 judgment.

1. What was the correct approach to applications of this kind?
2. What if any documents from the court file should B have access to?
3. What if any information should M be permitted to disclose about the proceedings to the world at large?

1. Rule 29.12(1) of the Family Procedure Rules, which governs access to and inspection of documents held at court, contains no limitation on or indication of the circumstances in which a judge should exercise the court’s power in any particular case. There is no limitation of the power to “exceptional circumstances”. Re X (Adopted Child: Access to Court File) [2014] EWFC 33, [2015] 1 FLR 375 considered. The court had to give “anxious scrutiny” to the public interests in issue and, critically, to the private (and probably conflicting) Article 8 and other rights of everyone involved.
2. B’s right to explore his own history engaged his rights under Article 8: as Gaskin v United Kingdom [1990] 1 FLR 167 shows, amongst the aspects of private life respect for which is guaranteed by Article 8 is knowledge about, and in certain circumstances the right to obtain from public records information about, one’s childhood, development and history. However, Article 8 did not afford B carte blanche to explore the history of every member of his family who was, directly or indirectly, involved in the proceedings before Singer J.
3. The court allowed B access to a limited number of documents, and only on terms that he provide an undertaking not to communicate their contents more widely.
4. M’s application was dismissed. A public campaign of the sort M wished to bring would interfere significantly with the article 8 rights of G in particular. Given that M’s ‘new evidence’ was and would remain untested in court, since she was not appealing the 2002 findings, such an interference was disproportionate.

The judgment contains interesting observations by the President about how the approach of the Family Division to issues of transparency has changed since 2002.