[2004] UKSSCSC CCS_3749_2003 (14 May 2004)
CCS/3749/2003

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	I allow the father’s appeal.  I set aside the decision of the Basildon appeal tribunal dated 29 July 2003 and I refer the case to a differently constituted appeal tribunal for determination.

REASONS

2.	On 29 July 2003, there came before the tribunal an appeal by the father against a refusal by the Secretary of State to issue a departure direction.  The father did not appear at the appointed time.  The tribunal waited for ten minutes and the appeal was then quickly dismissed in his absence.  Some fifteen to twenty minutes after the time when the hearing had been due to start, the father arrived.  Before the tribunal had been told of his arrival, the decision had been announced to the mother and the representative of the Secretary of State.  The father was given a copy of the decision, including a full statement of reasons, and was advised of his right to apply for the decision to be set aside.  On the following day, he wrote a letter to the Lord Chancellor’s Department, which was forwarded to the Appeals Service.  In it, he explained that his delay had been unavoidable and unforeseen and he enclosed press reports showing that the main road along which he had had to drive had been closed, with consequent chaos throughout south Essex, while a bomb disposal squad had been carrying out controlled explosions on suspect packages.  That does not appear to have generated a response but, a month later, he applied for leave to appeal to a Commissioner and leave was granted on 11 September 2003.  The chairman endorsed on the letter that had been forwarded by the Lord Chancellor’s Department the following comments:

“Leave granted.  I regret [the Appellant] did not take my advice and seek a setting aside.  In normal circumstances I would have refused this application but there is not only a need for justice to be done but seen to be done.  Should the Commissioner set my decision aside it may be appropriate to direct the next tribunal about the admissibility of court documents.”

3.	It is not entirely clear to me why the chairman did not seek comments from the other parties with a view to setting aside the decision of the tribunal under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 on the ground of the father’s absence.  It is true that that regulation requires there to be an application for setting aside but the letter received by the Appeals Service via the Lord Chancellor’s Department could have been construed as such an application.  Indeed, the chairman could have invited an oral application on the day of the hearing because, as I understand the situation, the mother and the presenting officer were still on the premises when the father’s arrival was announced.  The father might well have been content for the proceedings to start again before the same chairman if the chairman had thought it appropriate to hear the case afresh in view of the limited amount that had been said during the five or ten minutes of the first hearing.  However, I appreciate that that may not have been practical or appropriate and I also accept that one reason for the chairman granting leave to appeal was that he hoped for some guidance about the admissibility of certain documents in the file.  

4.	When the case first came before a Commissioner, he had it referred back to the Appellant with the suggestion that it was more suitable for a setting aside than an appeal.  The Appellant duly wrote to the Appeals Service.  As far as I can see, he received no response but the Appeals Service merely wrote to the Office of the Social Security and Child Support Commissioners stating that the Appellant could have applied for setting aside instead of applying for leave to appeal and enclosing another copy of the comments made by the chairman when refusing leave to appeal.  There is no evidence that the Appellant’s new application was ever placed before a chairman but, had it been, it would probably have fallen foul of the provisions in regulation 57(9) and (10) which severely – and, in my view, unhelpfully – limit the power of chairmen to accept late applications for the setting aside of decisions.  In any event, the case was transferred to me and I have now received submissions from all parties both as to the consequence of the father being delayed en route to the hearing and as to the admissibility of documents.

5.	Neither the mother nor the Secretary of State has opposed the father’s appeal insofar as it is based upon his absence from the hearing before the tribunal.  Plainly, that was not only not his fault but was also not the fault of the tribunal or of either of the other two parties.  Nonetheless, the consequence was that the tribunal did not hear his case as it was required to do and there was therefore a breach of one of the rules of natural justice, which requires each party’s cases to be heard, or, in more modern parlance, there was a breach of the right to a fair hearing guaranteed by article 6 of the European Convention on Human Rights.  As the tribunal’s decision was not set aside by the chairman under regulation 57 of the 1999 Regulations, it must be set aside by me on the ground that it was erroneous in point of law.

6.	I turn then to the question of admissibility of documents.  There are three documents in the file that were drawn up in connection with proceedings in court.  Pages 58 and 59 are a note written by counsel for the father in support of a fee claimed in proceedings relating to the father’s contact with his daughter.  In addition, page 57 is a letter sent by the father to the Appeals Service with the document on pages 58 and 59, commenting on its significance.  Page 45 is a page from a draft of answers to a questionnaire in ancillary relief proceedings.  Pages 49 to 51 are parts of Form E, completed by the mother in ancillary relief proceedings.

7.	Cases concerning contact with children and ancillary relief are usually heard in private.  Section 12 of the Administration of Justice Act 1960, as amended, provides:

“(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 inherent jurisdiction of the High Court with respect to minors;
(ii)	are brought under the Children Act 1989; or
(iii)	otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
…

(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 a contempt of court except where the court (having power to do so) expressly prohibits the publication.

…

(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.”

8.	Section 12(1) and (4) of the 1960 Act has the effect that publication of information about proceedings relating to contact with a child may be, but is not necessarily, a contempt of court.  Whether or not producing before a tribunal information about proceedings relating to contact amounts to publication in a case where the parties before the tribunal were also parties in the other proceedings, there will inevitably be publication to the Secretary of State and his officers where such information is produced in a child support case.  There is therefore potentially a contempt of court whenever information about proceedings relating to contact with a child is relied upon in a child support case.  In Re A (Criminal Proceedings) [1996] 1 F.L.R. 221, the Court of Appeal said that “the use, by a party or a legal adviser in other proceedings of information acquired in family proceedings bound by confidentiality, requires the leave of the family court”.  The making of such an application resolves any doubt there might be as to whether using the information might be a contempt of court in any particular case and it also enables the court to exercise its wide powers to restrain people from using information in circumstances where its use would be prejudicial to the administration of justice.  It must be noted that both section 12 and the ruling in Re A apply to “information” and not just to documents created for, or used in, the proceedings.

9.	 Pages 57 to 59 of the bundle of documents before me all contain information about family proceedings relating to contact with a child and I doubt that the family court would grant leave for that information to be used in the present case.  The father wishes to use the information only to challenge the credibility of the mother.  That was also the position in Re A, in which the court granted the leave sought.  However, that case can be distinguished from the present one, firstly because it is difficult to see how the information in the present case can be assessed without going into sensitive issues, whereas in Re A the information was not sensitive, and secondly because the present proceedings are less serious than the trial for murder in which the information was to be used in Re A.
	
10.	In the present case, I consider that use of pages 57 to 59 amounts to a potential contempt of court and, even if it does not, the court might wish to restrict the use of the information contained in those documents.  In those circumstances, use of the information without the approval of the court should not be allowed.  Accordingly, I direct that those pages be removed from the bundle of documents before it is sent to the tribunal.

11.	The general rule must be that a tribunal (and, for that matter, the Child Support Agency) should refuse to consider any information about proceedings relating to children where use of the information by a party is potentially a contempt of court.  I leave to be decided if and when it arises the question whether there may be an exceptional case in which it is so clear both that confidential information about such proceedings is relevant and that the court would grant leave for it to be used that material sent in by a litigant in person without such leave should not be ignored.

12.	Different considerations apply to information about, or obtained in, ancillary relief proceedings that do not wholly or mainly relate to children.  I have not received specific submissions on this issue, because the use of pages 45 and 49 to 51 is not challenged, but it may be helpful if I explain why I do not consider that I should direct on my own initiative that those documents should be taken out of the bundle.

13.	To disclose what happens in chambers in ordinary civil proceedings does not constitute a contempt of court “as long as any comment which is made does not substantially prejudice the administration of justice” (per Lord Woolf MR in Hodgson v. Imperial Tobacco Ltd [1998] 1 W.L.R. 1056, 1072).  However, information obtained in the course of ancillary relief proceedings is confidential because even voluntary disclosure in such proceedings is made under the compulsion of the duty to the court to make full and frank disclosure of all relevant information (Clibbery v. Allan [2002] EWCA Civ 45; [2002] Fam 261 (CA)).  It may be a contempt of court to reveal information obtained in those circumstances (Harman v. Home Office [1983] 1 A.C. 280).

14.	Nevertheless, it seems to me that a tribunal should not necessarily close its eyes to information about, or gained in the course of, ancillary relief proceedings between the parties to child support proceedings.  Apart from the facts that such information is unlikely to be as sensitive as information about proceedings relating to children and that it is far more likely to be of direct relevance, there are two reasons for my approach.  First, if the information is relevant, the party who provided it to the court may well be under as much of a duty to disclose that information to the Secretary of State or the tribunal as he or she was to the court.  It should not be forgotten that maintenance in respect of children was assessed within ancillary relief proceedings before the Child Support Act 1991 came into force.  Secondly, the confidentiality is intended to protect the person who provided the information in ancillary relief proceedings.  That person’s right to disseminate the same information to whomsoever he wishes is not restricted merely because the information has been given to the court and it must follow that he or she may waive any confidentiality in the information due to its being obtained through the proceedings in court.

15.	It was said in Clibbery v Allan that a person wishing to use for other purposes information obtained in ancillary relief proceedings should make an application to the court.  However, that case involved the publication of information in a newspaper.  In child support cases, the information is published only to the Secretary of State and the tribunal and they are likely to have been entitled to have the information provided to them anyway, albeit in a different form and from a different source.  I cannot imagine that the court expected litigants in person involved in child support cases to make applications to the court before using obviously relevant information obtained in ancillary relief proceedings between two of the principal parties to the child support case, particularly if the party who provided the relevant information to the court does not object to its use.

16.	I suggest that where one party relies on, say, a sworn statement made in ancillary relief proceedings by another party, a tribunal should first consider its possible relevance.  If it is not relevant, the tribunal should deal with the evidence on that basis rather than on the basis of possible confidentiality.  If it is relevant and the person who made the statement does not object to its use and argues that it is not inconsistent with his or her case, the tribunal may take that person to have waived any confidentiality, although sometimes the tribunal will wish to obtain a waiver in express terms.  Only if there is an objection to the use of the statement or it appears oppressive or otherwise prejudicial to the administration of justice to take it into account, should a tribunal decide either to ignore a relevant statement or to adjourn to enable a party to make an application to the court.  If there is such an adjournment, the tribunal might in some cases consider it to be more reasonable to impose on the objecting party the burden of obtaining an order from the court restraining the other party and the Secretary of State from making use of the statement than to impose on the other party the burden of obtaining permission to use the statement.  

17.	In the present case, page 45 was never confidential at all.  It is the father’s own information and the fact that he has supplied it to the tribunal in the form of a draft document relating to the ancillary relief proceedings is wholly irrelevant.  Accordingly, that document may remain in the file.

18.	The document at pages 49 to 51 was confidential but the mother has not objected to its disclosure and there is no dispute as to the accuracy of the information provided about the mother’s means.  The father wishes to rely on it as evidence that the mother’s lifestyle is inconsistent with her income.  However, I agree with the mother and the tribunal chairman that the father has misconstrued the document.   He suggests that it shows her expenditure to be £600 per month more than her income.  However part 3 of Form E is headed “Requirements” and it begins with “income needs”.  The information given therefore should reflect what the mother considered she reasonably required, even if she was currently unable to afford all that she listed and merely hoped to be able to afford it when maintenance was paid.  Of course, it is unacceptable to exaggerate what is required and current expenditure will often be all that is reasonably required for some items, but the point of the form would be undermined if parties merely listed current expenditure when spending power is temporarily limited.  It may be that pages 49 to 51 are therefore irrelevant and may be ignored on that ground but I see no reason why the tribunal should ignore that document on the ground of confidentiality.  That document too may remain in the file.

19.	I have said nothing about the general merits of the father’s application for a departure direction.  That will be considered by the differently constituted tribunal to whom this case is now referred.  There will be an oral hearing before the tribunal.  I note what the father says on page 107 but it might be wise for him to attend the hearing if he wishes to pursue his appeal against the Secretary of State’s refusal to issue a departure direction.

	(Signed)	MARK ROWLAND
		Commissioner
		14 May 2004