The recent – and by now infamous – case of Re Nasrullah Mursalin [2019] EWCA Civ 1559, in which a paralegal was sentenced to six months’ imprisonment for disclosing papers from family proceedings to an immigration tribunal judge, has generated much concern amongst immigration practitioners about when it is permissible to disclose or rely upon documents from family proceedings. Although Mr Mursalin’s sentence was quashed by the Court of Appeal, the case serves as a salutary reminder of the need to be on top of this area of law.

This article will look at:

• The privacy principles that operate in the family court and Family Division
• What amounts to a contempt of court
• What documents can or cannot be disclosed
• Communications about proceedings
• Restrictions on public identification of children
• How to obtain permission to disclose documents or rely on them in support of your client’s immigration case

However, this article is no replacement for a detailed study of the law and rules surrounding contempt and privacy in family court proceedings. Caution should be exercised and training sought where required.

Privacy in the family courts

The starting point is that family proceedings and particularly those that concern the welfare and upbringing of children are generally conducted in private: see the Family Procedure Rules (FPR) at 27.10. This rule operates with some limited exceptions: declarations of divorce, nullity and judicial separation (FPR Part 7); committal applications; and matters concerning serious medical treatment cases and the exercise of inherent jurisdiction (subject, potentially, to reporting restrictions).

What amounts to contempt of court

Section 12 of the Administration of Justice Act 1960 sets out the automatic restrictions on sharing information about family court cases that involve children. Section 12 relates to proceedings held in private and provides as follows (where relevant to family proceedings):

12.— Publication of information relating to proceedings in private.

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

…

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).

As can be seen from the statute, section 12 sets out what can be communicated about proceedings held in private and what will not be contempt of court — see section 12(4). It does not set out precisely what will amount to contempt.

Contempt of court under section 12 is a common law contempt. Practitioners therefore need to be familiar with and consider Parts 12 and 14 of the FPR (in particular Rules 12.73, 12.75 and 14.14) and Practice Directions 12G and 14E. These sections of the FPR set out additional rules about communication of information between people who are both within and outside family cases (see further below).

Returning to section 12, it is important to be aware that a contempt is only established if that person / publisher knew he / she was giving information relating to court proceedings and that the proceedings were private proceedings.

So, what amounts to a publication? The definition was set out by Munby J Kent County Council, Re B (A Child) v the Mother & Ors [2004] EWHC 411 and is very wide indeed:

72. … In my judgment, and subject only to the exception, recognised by Thorpe LJ and Wall J, where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children, there is a “publication” for the purposes of section 12 whenever the law of defamation would treat there as being a publication. I recognise that this means that most forms of dissemination, whether oral or written, will constitute a publication, but I do not shrink from that. After all, the purpose of section 12(1)(a) is surely to protect what Lord Shaw called “truly private affairs”, what Balcombe LJ in In re Manda [1993] Fam 183 at p 195 referred to as the “curtain of privacy” imposed by the family court for the protection of the particular child.

73. In the light of what has happened in the present case I need to emphasise that there is a “publication” for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official. Specifically, I wish to make it clear that, whatever the position of the police may be when exercising child protection functions, the Minister of State for Children cannot for this purpose be taken as exercising such functions. The Minister of State is not, within the meaning of what Thorpe LJ and Wall J had in mind, a child protection professional. Disclosure to the Minister of State cannot therefore be justified on the footing of the exception to the general principle.

Importantly for immigration lawyers, the dissemination of information to a public body (e.g. the Home Office) does amount to a publication under section 12 and could amount to contempt of court.

What documents can or cannot be disclosed / published?

In Re B Munby J set out two classes of documents in family proceedings at paragraph 82:

• Those documents that cannot be published under section 12 without the permission of the court (§82(vi)).
• Those documents that are not caught by section 12 and can be published without permission (s82(v)).

It is very important (and potentially very useful) to be aware of the two classes of documents.

Documents that cannot be published under section 12 without the permission of the court

vi) Section 12 prohibits the publication of:

a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.

These prohibitions apply whether or not the information or the document being published has been anonymised [emphasis added].

It is particularly important to note that anonymised documents are not treated any differently. Permission is still required from the family court in order to rely on documents in the above list, even where they are anonymised.

Documents that are not caught by section 12 and can be published without permission

v) Section 12 does not of itself prohibit the publication of:

a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing;

b) the name, address or photograph of such a child;

c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings;

d) the date, time or place of a past or future hearing of such proceedings;

e) the nature of the dispute in such proceedings;

f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place;

g) the name, address or photograph of the witnesses who have given evidence in such proceedings;

h) the party on whose behalf such a witness has given evidence; and

i) the text or summary of the whole or part of any order made in such proceedings.   

Practitioners will note that “i) the text or summary of the whole or part of any order made in such proceedings” reflects the wording of section 12 (2):

(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

This should hopefully provide some relief to practitioners who want to rely on family court orders to establish that – for example – a separated parent is spending time with a child, or that a child lives with a parent.

It is extremely important to note that the provisions of section 12 are not limited in time. It is therefore potentially a contempt of court to publish information as defined above even after the conclusion of proceedings.

Communication more generally

Looking at the FPR and the rules about communication more generally, practitioners should be aware of the following permitted communications:

12.73 Communication of information: general

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 –

1. a party
2.  the legal representative of a party;
3. a professional legal adviser;
4. an officer of the service or a Welsh family proceedings officer;
5. the welfare officer;
6. the Director of Legal Aid Casework (within the meaning of section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012);
7. an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
8. a professional acting in furtherance of the protection of children;
9. 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.

Breaking this down: the first category is communication that is practically necessary to enable the smooth running of proceedings by and between the parties and people involved. This can include confidential disclosure to obtain advice, support or assistance in the conduct of proceedings, mediation or complaints (see FPR 12.75). It includes communication to a “professional legal adviser”. In Re B (A Child) (Disclosure of Evidence in Care Proceedings) [2012] 1 FLR 142, Bodey J held that the phrase “professional legal adviser” includes a solicitor representing a party to family proceedings in related criminal proceedings – arguably this is applicable to immigration lawyers where their clients have parallel family proceedings. Note that onward disclosure is prohibited e.g. as part of the instructions and documents sent to an expert instructed within the immigration case in which you are instructed.

The second category of communication is self-explanatory: where the court gives permission.

The third category of communication is communication to specific persons or bodies for purposes ancillary to proceedings e.g. criminal investigation, therapy, complaints or for regulatory purposes.

Restrictions on public identification of children in proceedings

It is important be aware of section 97 of the Children Act 1989. This section created a criminal offence designed to protect children subject to proceedings under that Act from being publicly identified. It provides as follows:

(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify— 

(a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or 

(b) an address or school as being that of a child involved in any such proceedings.

(3) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know, and had no reason to suspect, that the published material was intended, or likely, to identify the child [emphasis added].

The highlighted words “to the public at large or any section of the public” were inserted by section 62 of the Children Act 2004. The amendment was intended to protect parents from criminal liability simply for mentioning the fact of their involvement in a dispute about child arrangements. The explanatory note to the 2004 Act notes that “in effect, this means that passing on information identifying, or likely to identify, a child (their school or their address) as being involved in court proceedings to an individual or number of individuals would not generally be a criminal offence:.

What this means for section 97 is as follows:

• “Publishing” details, such as a child’s name or other identifying features, would only be caught by section 97 if it was to more than a few individuals.
• This differs from the “publishing” of what happened in court which may lead to contempt under section 12 of the Administration of Justice Act 1960 – there is no restriction in terms of numbers or type of people when considering whether there has been a contempt of court under section 12.

Notably – and importantly – section 97 ceases to have effect at the end of proceedings. Again, this is a crucial difference from section12 of the 1960 Act, which continues to apply after proceedings finish.

Two issues to keep in mind in relation to section 97:

• Avoiding jigsaw identification. This is where pieces of information published in different places might be connected by a person and lead to a child being identified as being involved in family proceedings. Watch out for this.
• If you have permission to disclose documents from family proceedings in a statutory appeal or judicial review that will take place in open court – would this be caught by section 97? If so, does an anonymity order need to be sought?

How to get the documents that you need

In the first instance, seek the consent of the other parties to the family proceedings. If their consent is given, a Consent Order can be drawn up and sent for the approval of the family court.

If consent cannot be obtained, an application will need to be made on Form C2 seeking disclosure of a limited list of documents. This application will need to be accompanied by the requisite fee and by a detailed statement setting out:

• The schedule of documents sought. Keep this limited and proportionate to maximise the chance that the application will be granted by the family court.
• Why the documents are sought. This needs careful consideration in order to avoid assertions by the other parent / carer(s) involved in the case and / or the inference of the court that the family documents are sought for “self-serving” ends.
• What measures will be put in place to suitably edit / anonymise the disclosed documents so that they do not contain any information which may lead to the identification of the child who is the subject of proceedings.
• Restrictions on the Home Office (or other public body to whom the documents are disclosed) in respect of onward disclosure. This means making it clear that there will be no onward disclosure of the documents. It is not suggested that solicitors would be responsible for any third party contempt, but it may act as a further reassurance to the court that the documents are to be disclosed / published on one occasion and for one singular purpose.
  

When making a decision on whether to permit disclosure of documents the child’s welfare is very important but not paramount (as usually applies in family proceedings – see section 1(1) of the Children Act 1989). This is important when considering the question of “why the documents are sought” as set out above.

Consider also using the protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal. This is particularly helpful for unrepresented clients or where there is insufficient time to approach the family court directly. Importantly, paragraph 7 of the protocol highlights that documents in family proceedings cannot be disclosed to third parties including judges in the tribunal without permission (referred to in the protocol as “an order of the Family Court Judge”). This is correct and is what caused the family court to become aware of the contempt of court in Mr Mursalin’s case!

Questions to ask yourself

When considering how and whether to obtain permission to disclose documents from family proceedings the following questions are important:

• What documents do I need? Do I need permission to obtain those documents?
• Is my client still involved in family proceedings? If so, collaboration between family and immigration solicitors is key.
• Is my situation unusual (obstructive party on the other side, proceedings have concluded, the proceedings are factually or legally complex)? Do I need to instruct expert counsel with experience of both areas of law to make a disclosure application and / or provide advice on disclosure?
• Is there a risk of the child being identified as a child in proceedings (see section 97 above)? If so, do I need to apply for anonymity and / or a private hearing in my case?

A shorter version of this article was originally published in 2011 by Colin Yeo.