Using Family Court Documents in the Immigration Tribunal
Although often characterised by the Home Office as a largely administrative process, the reality of many immigration, asylum and nationality applications is that they incorporate diverse and complex legal and personal issues, which must be properly addressed in order to meet the relevant requirements.
One common issue is the use of family court documents in immigration applications or appeals. Many people would expect to be able to do as they choose with documents relating to their own divorce or child care arrangements, but this is not the case. In fact, the family courts have strict rules regarding the type of documents which can be ‘published’ to third parties, which includes disclosing such documents to the Home Office and immigration tribunals.
This is an incredibly important issue and legal practitioners – or even applicants themselves – who fail to follow these rules can be held ‘in contempt of court’.
This article will set out the broad principles which govern the disclosure of documents from family court proceedings in immigration, asylum and nationality applications and appeals.
Why might I need to provide my family court documents in an immigration matter?
The evidential requirements for an application or appeal will always depend heavily on the individual circumstances of the applicant and the relevant requirements for their case. However, there are some common areas where evidence relating to family court proceedings may be relevant. These include:
- Demonstrating freedom to marry;
- Demonstrating ‘sole responsibility’ for a dependent child;
- Demonstrating a genuine and subsisting relationship with a British child under paragraph EX.1 of Appendix FM;
- Substantiating domestic abuse allegations in an application for ILR or on the basis of Article 8;
- Evidence relating to UK adoptions;
Why can’t I do what I like with my own documents?
The reason that the disclosure of family court documents is restricted is because of the nature of family court proceedings themselves. Unlike most other legal proceedings, which are expected to be conducted publicly in the interests of open justice, family court proceedings are generally carried out in private in order to protect the anonymity of any children involved. This is because of the very intimate nature of family court proceedings, which often concern quite sensitive details relating to the welfare and upbringing of the relevant children.
This principle is considered to be so important that nearly all matters conducted in the family courts, whether or not they concern any particularly sensitive details, are governed by the privacy rules.
Therefore, the basic starting point, per Section 12 of the Administration of Justice Act is that the ‘publication’ of information relating to proceedings which:
“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;”
will be considered contempt of court.
According to the case of Kent County Council, Re B (A Child) v the Mother & Ors  EWHC 411, this includes the following:
“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.”
Munby J went on to note that “These prohibitions apply whether or not the information or the document being published has been anonymised.”
It is also important to note s.97 of the Children Act 1989, which makes it a criminal offence to identify children subject proceedings under the Act 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”
What is publication?
The definition of ‘publication’ in these circumstances was also set out in Re B, in which Munby J deliberately defined publication in very broad terms:
“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. […] 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.”
One exception to this is of course when “there is a communication of information by someone to a professional, each acting in furtherance of the protection of children”. In addition, information will not be ‘published’ within the meaning of Section 12 when it is communicated to certain people involved in the Family Court proceedings themselves – such as the other party or legal representatives – or when it is communicated with the court’s permission.
However, it is clear that any of the possible uses for family court documents in immigration cases are likely to amount to publication.
Are there any documents which are exempt from Family Court privacy rules?
There are some limited exceptions to Family Court privacy rules. Probably of most relevance to immigration matters is the fact that there is an exception for declarations of divorce, nullity and judicial separation.
This means that, for example, visa applicants who are seeking to prove their freedom to marry or the breakdown of any previous relationships can provide divorce certificates as part of their evidence without having to take any further steps.
What are the consequences of publishing prohibited documents?
The consequences of publishing private family court documents without following the proper process are extremely serious. In addition to the criminal offence established under the Children Act, publication of Family Court documents may also amount to contempt of court, an offence which can result in up to two years’ imprisonment.
A famous cautionary tale amongst immigration practitioners is the case of Nasrullah Mursalin, a paralegal who was sentenced to six months’ imprisonment for breaching family court rules after he sent papers from family proceedings to an Immigration and Asylum First-Tier Tribunal. Although his sentence was eventually quashed, the case serves as a reminder of how seriously this kind of breach is taken.
What should I do if I need to rely on private documents?
Given the risk of being in contempt of court, individual applicants/appellants or legal practitioners should generally seek the advice of a specialist family court practitioner to understand their options in terms of disclosing certain documents to the Home Office or Immigration Tribunal.
As a general rule, the first step should be to seek the consent of the other party or parties to the proceedings. If their consent is given, a Consent Order can be drawn up and sent for approval of the family court.
Otherwise, the permission of the Family Court will need to be sought to publish the information without the consent of the other party.
For ongoing family court proceedings, this can be done using Form C2, where applicants can apply to have a select list of documents disclosed. This should be accompanied by a statement explaining why the documents are sought.
Practitioners and applicants should be extremely cautious with documents from the Family Court – disclosure could have serious consequences. Applicants should be reassured that some key documents they may wish to use in immigration, asylum or nationality applications should be exempt from these rules, but should seek advice from a family law practitioner if in any doubt.