R (Children: Control of Court Documents)

This appeal concerned the Family Court's power to control physical possession and distribution of documents filed in family proceedings. The judge refused to allow the appellant (R), a convicted paedophile and former intervener in care proceedings, to retain a physical copy of the unredacted fact-finding judgment or of parties' written submissions while in custody. The judge relied on the Family Procedure Rules and the court's inherent and case management powers, and balanced R’s Article 6 rights to reasons and a fair hearing against the children’s Article 8 rights to privacy and a potential Article 3 risk of degrading treatment if graphic material were disseminated.

The Court of Appeal held that the Family Court has the power to control access to and possession of documents and to withhold physical copies where necessary. The judge’s decision to give R a redacted judgment, a summary of findings, and opportunities to have the judgment explained with intermediary support was a proportionate exercise of that power in extreme circumstances. The appeal was dismissed.

This case arises from a fact-finding hearing in care proceedings concerning two sisters. R, their adult brother, intervened in the family proceedings and was later convicted and imprisoned for serious sexual offences. The fact-finding judgment made adverse findings that R was a predatory paedophile who had raped one sister. The judgment contained extensive and explicit sexual material.

The nature of the application: R sought physical copies of the court’s fact-finding judgment and the written submissions filed in the proceedings so that he could retain and read them in prison. The Family Court judge directed that R should not be provided with physical copies of the full unredacted judgment or of the parties’ written submissions. Instead he ordered that R be provided with a redacted and anonymised judgment and a summary of the findings, and that the judgment be explained to him by his legal team with intermediary support. The judge also indicated that an anonymised abridged version would be published on BAILII.

Procedural posture: The decision followed a 16-day fact-finding hearing before HHJ Oliver Jones in the West London Family Court. R appealed to the Court of Appeal against the judge’s refusal to allow him to retain physical copies of unredacted documents. The Court of Appeal heard submissions on whether the court had power to withhold physical copies and, on the merits, whether the judge had properly balanced competing rights.

Issues framed by the court: (i) whether the Family Court had the power to prohibit disclosure/possession of the unredacted judgment and written submissions to a party after proceedings had concluded; (ii) whether the judge’s exercise of that power was justified and proportionate, in particular in light of R’s Article 6 right to reasons and potential future needs for the documents (appeal, Parole Board) and the asserted risk of dissemination in prison engaging the children’s Article 8 and possibly Article 3 rights.

Reasoning and outcome: The Court of Appeal concluded that (i) the court plainly has power to control use and possession of documents filed in family proceedings, reflected in the Family Procedure Rules (notably rules 4.1, 12.12 and 29.12–29.14) and supported by section 6 of the Human Rights Act 1998; (ii) limitations on possession may be needed to protect other Convention rights, including in rare cases where dissemination might amount to degrading treatment under Article 3; and (iii) the judge carried out a careful and rigorous balancing exercise. He provided R with the substantive parts of the decision in redacted form and ensured explanatory support, which satisfied R’s right to a reasoned decision and a fair trial while protecting the children. The Court of Appeal described the circumstances as extreme and dismissed the appeal.

The court noted that orders restricting disclosure may remain in force after proceedings have concluded, that documents filed in proceedings are under the court’s control, and that solicitors are bound by court directions despite client instructions.

This is an appellate decision. The Court of Appeal dismissed the appeal. It held that family courts have power to control the possession and distribution of documents filed in family proceedings and may withhold physical copies from a party where necessary to protect competing Convention rights. The judge’s refusal to allow the appellant to retain the unredacted judgment and written submissions was a proportionate and properly reasoned exercise of that power in the extreme circumstances of this case; providing a redacted judgment, a summary of findings and explanation with intermediary support met the appellant’s entitlement to a reasoned decision and a fair trial.

Appeal from the West London Family Court (HHJ Oliver Jones, case no. ZC1800558) determined in the Court of Appeal, Civil Division, reported as R (Children: Control of Court Documents) [2021] EWCA Civ 162. The fact-finding hearing and first instance orders were given by HHJ Oliver Jones in earlier family proceedings (case no. ZC1800558); care orders made in December 2020 are recorded in the judgment. Permission to appeal was granted by the Court of Appeal on 1 October 2020 on issues concerning the control of sensitive material.