Harold G Walker

Harold G Walker Solicitors

Your Friend-In-Law for over 77 years

Relating to…

 

 
Matrimonial financial remedy AND children cases.

 

 

by Rob Price

 

In cases involving children and also in those relating to matrimonial financial remedy, you have to be extremely careful about the treatment of confidential information acquired from the other person in your case, mother or father, husband, or wife.

 

 

Matrimonial financial remedy cases.

Snooping into the private financial affairs of your partner is not particularly recommended!

 

In these sorts of cases, there is a duty on each of you to disclose to one another, in full, your respective financial position, with documentary evidence.

 

In a recently published case, the wife’s brother hacked into her husband’s computers, revealing wealth otherwise not disclosed by her husband. Potential criminal and civil offences arise immediately. The acquirer ought to know it’s confidential.

 

Solicitor’s general duty.

Applicable to all cases, whether children or financial remedy, in our case, once we receive this information from you, we have to say to you that we do not want to see it. We must then place it in an envelope and send it back to the owner or their solicitors, stating clearly that we have not read and/or considered the information and that there are no copies kept.

 

If the information is acquired electronically, we must send this back to the other party electronically and state that we don’t have any copies of it.

 

If it’s time for court involvement.

In this context, the person who has obtained it (let’s say it is one of our family team), can say to the court in a statement or affidavit, that    ‘….we have seen this information, and when husband tells you (the court), that he has no money, that’s untrue…..’, because we are going by our memory of sight of the document only.

 

‘Memory test’.

At that point, the court may then consider re-testing the admissibility of otherwise illegally obtained information, to see if the person who shouldn’t have looked at it ought to persuade the court of its disclosure relevance. It’s called the ‘memory test’.

 

After all, respective full and frank disclosure in matrimonial financial remedy matters is required by law in any event. A discipline of encouragement of full disclosure is important, particularly if it is seen that non-disclosure of something that is obviously relevant to the potential outcome of your case will likely prejudice you with an unfair outcome, regardless of how the information was obtained.

 

 

If obtained illegally, the court can still apply the information if it is necessary in order to dispense with the case fairly and justly and saving additional significant costs of the injured party by doing so.

 

Of course, the information has to be relevant. Whilst the court is not compelled to exclude evidence illegally obtained, it retains the power to exclude.

 

Hacking is illegal, obtaining that information unlawful, but information relevant to your claim may be admissible if it defeats a claim being made to the court that prejudices the outcome.

 

The court cannot ignore the reality of the situation.

 

Children cases.

 

Hypothetically, let’s say that, within an application to the court for a child arrangements order, to live with a child, or for time to be spent, where and for how long, there is an allegation made by mother, quite serious, regarding the behaviour of father towards her and how this has adversely affected her.

 

Sexual abuse, for example, and the effect this has had on her ability to protect the children effectively whilst in fear of father, under duress, placing father in a very bad light, and compromising father’s desire to spend sufficient time with the children, given the significant aggression allegedly inflicted.

 

Let’s now say that father, who has a strong relationship with mother’s family, hears from mother’s sister that mother has a diary detailing the complete opposite of her allegations of father, and then she discloses this diary to father to use that information in his case to see the children by rebutting mother’s allegations.

 

Right to privacy.

The question then is, what can you do with this sort of information? To answer this, we have to consider the Human Rights Act and the law contained within it. The starting point provides for the right to everyone to a private family life. That includes couples who live together, or otherwise show a commitment to each other as well as those who are married.

 

Disclosure of confidential information to third parties.

We can only interfere into someone’s private life under certain circumstances, for example to protect the rights of others. Freedom of expression can also be exercised to protect the rights or reputations of others, but the general consensus is to prevent information received in confidence from being disclosed.

 

Doing something with someone’s personal data that is not allowed attracts a criminal (unlawfully acquiring personal information) and civil (misuse of private information) liability.

 

Duty of confidence.

There is a general duty of confidence that must be met when receiving confidential information from someone, that you must not disclose it elsewhere. It’s all about the right to privacy in a democratic society, protecting fundamental freedoms.

 

The test.

The test to be applied is what a reasonable person would likely consider a breach of exposing private information. It is not enough for the person themselves to plead that.

 

The Children Act.

Other statute relevant to children (The Children Act), provides information must not be published identifying or risking the identity of the child. The burden is on the publisher to show that they had no reason to believe the information would identify the child.

 

Overriding objective of the court.

Generally, the overriding objective of family law relating to children’s cases is for the law to be applied justly without delay. The court would expect you to address disclosure such as this and explain why it ought to be admitted as evidence. Case management may limit the issues in the case to be heard before the court and evidence may be excluded or included by the power vested in the court.

 

This is about a private diary. Is father misusing this information? Is it a misuse where the State (the court) can interfere with private life? In this scenario, if the father doesn’t produce this evidence illegally obtained, his parental rights are likely to be severely curtailed.

 

If by (us) returning the document to the owner or their legal representative in a sealed envelope unopened, the disclosure of it can be explained in a statement to the court.

 

Proper argument will then be made by your lawyer why the evidence should be admissible, because otherwise there is the potential of an injustice, or that it shouldn’t, because the subject matter is deemed irrelevant.

 

 

Conclusion.

A balance is sought to be struck in law between these rights to privacy against the pursuit of disclosure of evidence illegally obtained, that lack of disclosure might prejudice one party to proceedings.

 

It is important for you to know about this because if you do have information of your partner that seems to contradict what they are saying to you, whilst we do not want to see it, we can explain the nature of acquisition and, regardless, the fact that the information is illegally obtained, plead why such evidence ought now be disclosed by the owner in your case, in the interests of your right to a fair hearing.

 

Understanding and respecting Confidentiality in Family Law is crucial for ensuring a fair and just outcome in your case. If you have questions or need guidance on how to handle confidential information appropriately, our experienced legal team can help you manage the complexities of Confidentiality in Family Law. Contact us today for expert advice and support.