Disclosure from family proceedings
A very good solicitor I know nearly came a cropper on this the other day, so I thought I would post up some advice on the subject. I suspect quite a few immigration lawyers are not really familiar with the issues around disclosure. Given the increasing importance attached to family life and the best interests of children in case law, I hope this will be of assistance.
Basically, any documents prepared for the purposes of or any information relating to family proceedings relating to children is strictly confidential and cannot be disclosed to another party without committing contempt of court. Sarah Harman was famously suspended for breaching the predecessor to this rule, although I see now that she would not be suspended under the new version because of rule 12.75. In any event, it is taken very seriously. There are some exceptions, including for disclosing papers to professional legal advisers. The full rule, taken from the Family Procedure Rules 2010, is as follows:
Communication of information: general
12.73.—(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated—
(a) where the communication is to—
(i) a party;
(ii) the legal representative of a party;
(iii) a professional legal adviser;
(iv) an officer of the service or a Welsh family proceedings officer;
(v) the welfare officer;
(vi) the Legal Services Commission;
(vii) an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
(viii) a professional acting in furtherance of the protection of children;
(ix) an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;
(b) where the court gives permission; or
(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.
(2) Nothing in this Chapter permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.
(3) Nothing in rule 12.75 and Practice Direction 12G permits the disclosure of an unapproved draft judgment handed down by any court.
Both the UK Border Agency and the Immigration and Asylum Chambers have their own legal personalities. Neither has any divinely given right to see papers from family proceedings. If a person wants to rely on papers from family proceedings in an immigration case, for example to prove family life, to show progress of proceedings or for any other reason, they will need to get a court order for disclosure. This includes where the family proceedings have been concluded.
The relevant papers might be, for example, court orders, statements from parents or reports from CAFCASS, from a Guardian, from a social worker, a psychologist or psychiatrist or other medical professional, from a family assessment centre of some sort or from an Independent Social Worker.
The usual way to obtain a disclosure order is to write a consent order for disclosure, secure the written consent of all the parties and then submit it to the court for approval. Such an order might provide as follows:
IT IS ORDERED BY CONSENT:
1. The [party] may disclose x, y and z document to the UK Border Agency and the Tribunal for the purpose of immigration proceedings.
2. There be no order as to costs.
Because confidentiality is taken very seriously in family law children cases, the other parties and the court will expect any disclosure to be as narrowly drawn as possible, to provide only for disclosure by a certain party, of certain documents, to certain parties for certain purposes.
The staff at different courts differ as to their helpfulness. Some court staff have proven to be extremely helpful, offering to contact all the parties even in closed cases in order to facilitate swift disclosure. Others may insist on dealing only with the existing nominated solicitors for the party concerned who are already acting in the family proceedings. Such solicitors will therefore need to be persuaded to carry out the necessary tasks and to do so with alacrity. The coruscating judgment of Mr Justice Munby in In the matter of M and N (Children)  2 FLR 2030 may be of assistance.
As a word of warning, family solicitors charged with representing a client’s best interests in family proceedings may not welcome a request for disclosure of evidence into immigration proceedings. Tactically, it may cast doubt upon the motives of that party for participating in family proceedings and it offers a potential argument to another parent opposed to contact or residence.
Lastly, it is worth saying that if such reports do not exist, it may be possible to commission them. There are Independent Social Workers who can observe and report back on the nature and depth of a relationship between a parent and child, a process that will involve talking to a child who is old enough and perhaps talking to other individuals. Such reports can be expensive as they require a great deal of work.