“Do we have to?” – Ordering and Avoiding Disclosure by Third Parties

The starting point for ordering disclosure against organisations that are not party to proceedings is rule 21.2 of the Family Procedure Rules 2010(FPR). Rule 21.2(3)requires that the court can order such disclosure “only where [it] is necessary in order to dispose fairly of the proceedings or to save costs.” Necessary is the operative word.

Often the third-party organisation is given express permission to apply to vary or discharge the order. Even if that isn’t explicitly set out then the third-party organisation can apply to the Family Court under rule 21.3 FPR 2010 for an order permitting them to withhold disclosure on the ground that disclosure would harm the public interest. This ground (the public interest immunity or PII) is sometimes a third-party organisation’s last chance for withholding disclosure in care proceedings.

The approach for asserting a public interest immunity is set out in the leading House of Lords case -v- Chief Constable of West Midlands Police, ex parte Wiley; R. -v- Chief Constable of the Nottinghamshire Constabulary, ex parte Sunderland[1995] 1 AC 274, [1994] 3 All ER 420. In his speech (at p.424) Templeman LJ gives us the foundation of a three-stage test for building a PII argument:

  1. Whether the information is sufficiently relevant and material to require disclosure in the interests of justice; if so,
  2. Whether there is a real risk that disclosure would cause “real damage” or “serious harm” to the public interest; and if so,
  3. Whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purposes of doing justice in the proceedings.

You can see that the FPR thematically follows Templeman LJ’s point (i) and although Wiley originated in police complaints proceedings, the full approach has been adopted for disclosure in other areas. This includes disclosure ordered in care proceedings (see, for example, Re C (A Child) [2016]EWHC 3171 (Fam), [2017] 1 FLR 1665and Re C (A Child) No.2 (Application For Public Interest Immunity) [2017] EWHC 692 (Fam), [2017] 2 FLR 1342).

While successful public interest immunities are rarely established on the grounds of real damage or serious harm to the public, disclosure orders are often made out in (unavoidable) haste and with an abundance of (well-intentioned) enthusiasm. In those circumstances it’s often easier to vary or discharge an order under the first limb of the test. If you can argue that the information is simply not necessary, relevant, or material to the issues in the case then try that first.

Typically third-party disclosure orders are made against the police, social services, and health trusts but orders are also made against schools, community mental health or substance misuse organisations, charities, offender management/support services, and independent social services. The same tests for and against disclosure apply to any of these.

Members of Chambers have recently acted on behalf of an independent school that found itself (and its student records) caught up in care proceedings. In that case the order for disclosure was successfully varied to limit disclosure to relevant information only (crucially making the actual disclosure exercise a much more manageable task for the school office).

by Sam Prout