Y v Z

Confidentiality in private family proceedings is not absolute. Information may be disclosed in accordance with the Family Procedure Rules 2010 and the relevant practice direction, but other disclosure requires permission or an order of the court.

The court must balance confidentiality, the public interest in investigating wrongdoing, the rights of the parties and the interests of any child. Lies or non-disclosure do not automatically forfeit confidentiality. Where the wrongdoing can be remedied within the family proceedings, disclosure to outside agencies may be disproportionate, particularly where it threatens the financial support available to a child.

The mother appealed against an injunction made by Senior District Judge Waller in Schedule 1 financial proceedings. The injunction prohibited disclosure of information or documents from the proceedings without permission.

The mother wished to disclose to the police, the Crown Prosecution Service and the Financial Conduct Authority that the father had failed to disclose, and had falsely denied, receiving proceeds from the sale of an overseas business. The District Judge had treated the lies within the financial proceedings and ordered financial reparation, but refused disclosure to outside agencies.

The central issue was whether that decision was wrong and whether disclosure was justified having regard to confidentiality, the public interest, the Convention rights of the parties and the child’s financial interests.

1. Appeal dismissed. The injunction was not wrong within the meaning of rule 30.12(3)(a) of the Family Procedure Rules 2010.
2. The general rule is that information supplied compulsorily in private financial family proceedings is confidential. Rule 14.14 and Practice Direction 14E create defined exceptions. A judgment may be communicated to a police officer for the purpose of a criminal investigation unless the court directs otherwise. Disclosure to the Financial Conduct Authority required the court’s permission.
3. The authorities support a distinction between wrongdoing which can reasonably be remedied within the family proceedings, including by financial orders, costs orders or contempt proceedings, and external criminality or loss which cannot be so remedied. Disclosure to outside agencies is more readily justified in the latter category, although no sanction is excluded in either category.
4. Lying does not automatically destroy confidentiality. Lykiardopulo v Lykiardopulo was not to be read as establishing that every lie results in loss of confidentiality. The court must still balance the competing rights and interests. Here, the father’s conduct concerned his disclosure obligations in bitter financial litigation, and the financial consequences of prosecution or regulatory action threatened the child’s continuing support.
5. The mother’s rights under Articles 6 and 10 of the ECHR were qualified. The interference with her freedom to impart information was prescribed by the procedural rules and was necessary and proportionate. The child’s interests were not paramount, but they were an important consideration requiring an intense focus on the likely impact.
6. The case came close to the line, particularly concerning the FCA, but the District Judge had carried out the necessary balancing exercise and his conclusion could not be characterised as wrong. The decision was not a general licence to lie or fail to disclose; sanctions, including disclosure in an appropriate case, remained possible.
7. The application for a non-anonymised judgment was refused because publication of the parties’ names would effectively defeat the balanced decision restricting disclosure to the police and FCA.

• High Court (Family Division): Senior District Judge Waller’s order of 26 March 2013 was reviewed. The appeal against the injunction was dismissed.
• The mother’s separate appeal against financial orders had previously been dismissed by the High Court on 20 December 2013; that decision was not the subject of the present determination.