Further to my recent short article re slow disclosure of medical records under DPA/GDPR, the provisions of s31G of the Matrimonial and Family Proceedings Act 1984 are also of relevance (inserted by the C and C Act 2013).
For some reason, the section is not reproduced in my Red Book 2018 in the MFPA 1984 section, but reads as follows:-
31G Witnesses and evidence
(1) Subsection (2) applies where the family court is satisfied that a person in England and Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, in proceedings in the court.
(2) The court may, if it is satisfied that it is in the interests of justice to do so, issue a summons—
(a) requiring the person to attend before the court, at the time and place specified in the summons, to give evidence,
(b) requiring the person to attend before the court, at the time and place specified in the summons, to produce the document or thing, or
(c) requiring the person to produce the document or thing to the court.
The section was considered by Sir James Munby (sitting as High Court Judge) In the matter of Re H [2018] EWFC 61, wherein he said:-
- It is also clear that the family court can, if this is necessary to enable it to dispose of the proceedings before it justly and fairly, make an order requiring the third party decision maker, or an individual specified by the family court for the purpose, to disclose relevant documents or to give evidence (see further, paragraph 38 below) (GF’s note - this refers to the mandatory wording of para 7.4 Police protocol - "The police and the CPS will comply with any court order."). The jurisdiction to make such an order is quite plainly conferred by section 31G of the Matrimonial and Family Proceedings Act 1984, to which Mr Day referred me, and there is nothing, whether in section 31G itself, or in the provisions of the Family Procedure Rules, or in the case-law or in principle, to exonerate the police, the CPS or any other public agency or authority from the reach of section 31G. Section 31G goes to the power of the court to make an order for the disclosure of documents or the giving of evidence; it does not, I emphasise, empower the court to disregard the principle that although the court can demand an explanation it cannot require the third party to justify its decision.
Re H is also interesting because it provided an opportunity for Sir James to examine the limits of the Family Courts powers in connection with any Crown Court proceedings running in parallel or other agencies or authorities.
