R (Children: Control of Court Documents) [2021] EWCA Civ 162

In an order made after a fact-finding hearing in care proceedings Jones J directed: “R” should not be provided with a physical copy of the judgment or of written submissions made but should instead receive a summary of the findings and a redacted version of the judgment with explicit sexual references removed.

The order was made under “extreme circumstances” [2] whereby R, the adult brother who intervened in care proceedings relating to his two sisters, was found to be a “predatory paedophile” who had raped his sister. The trial Judge therefore made the above order “to protect the children from sensitive information including allegations of sexual abuse being misused or potentially being circulated amongst paedophiles within the prison”[5].  The trial Judge recognised, using the words of Munby J in Re B, that it “is an exceptional course to restrict a litigant’s access to documents”.  The judge then accepted the burden to restrict disclosure is a heavy one [20] and stated there is “obviously a legitimate public interest in protecting the children…from details of what has occurred from becoming widely shared”, particularly where such distribution was for “sexual gratification”, amounting to “degrading treatment” contrary to their Article 3 rights [20].

R appealed on several grounds, namely: the Judge had given too much weight to the perceived risks of unlawful dissemination of the material and too little to R’s future need to access material for proceedings in prison, and in any event the court did not have the power to prohibit the disclosure in issue.  Jackson LJ held that the Judge had conducted a “conspicuously careful balancing exercise” which led to a “sound” conclusion [22].  R had been provided with “everything he needs to understand the Judge’s decision” [22].  Jackson LJ highlighted the guidance of Baroness Hale in Re A (Family Proceedings: Disclosure of Information) [2012] at [31-32] when considering a subject’s Article 3 rights. He also stated that a party does not “own documents filed on his behalf so that he cannot be deprived of them” [25].

The full judgment can be accessed here.

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