As will be well known to regular readers of this blog, Family Court proceedings relating to children are normally held in private, primarily for the protection of the children involved. That means that court papers relating to the proceedings must not be disclosed to anyone else unless the court gives permission for the disclosure. Disclosure without permission is a breach of the rules and a contempt of court.
But what happens if the papers are disclosed, even if only in error? The recent Court of Appeal case Re Nasrullah Mursalin provides the answer, whilst also dealing with a couple of related points.
Mr Mursalin is a member of Lincoln’s Inn and hopes to train and practice as a barrister. At the material time for this case, however, he was working as a paralegal for a firm of solicitors, who specialise in immigration law and family law. In the course of his employment, he assisted in the preparation of a case in the Immigration and Asylum Tribunal on behalf of a “Mr M”, and in the course of his work on that case he prepared and filed a bundle of documents to the Tribunal. It is said that the documents included a number of papers from family proceedings involving Mr M’s children. Obviously, this amounted to a disclosure of the Family Court papers, for which no permission had been given.
The matter came to the attention of the Family Court. It was argued on behalf of Mr Mursalin that the family documents had been included in the bundle for the Tribunal because he thought he was complying with directions made by the Tribunal judge, that it was a genuine error, and that Mr M had wanted the documents to be included in the bundle. Mr Mursalin apologised to the Family Court judge for his error. Notwithstanding all of this, the Family Court judge found that there had been a serious breach of the rules, and sentenced Mr Mursalin to six months imprisonment, suspended until January 2020.
Mr Mursalin appealed, to the Court of Appeal. Whilst it found that there did appear to be a breach of the rules, and did not excuse the unlawful, unauthorised disclosure of confidential Family Court documents, the Court of Appeal allowed the appeal, as the strict procedural rules on applications for a person’s committal to prison for contempt had not been followed. I do not need to go into the details of the procedural irregularities for the purpose of this post.
What are we to draw from all of this?
Well, I think that the first thought that came to mind when I heard of the case was the extreme nature of the sentence (I believe I am not alone in this). Yes, there had of course been a breach of the rules but, as Lord Justice Baker pointed out, such a sentence could well have prevented Mr Mursalin from pursuing his ambition for a legal career. We all make mistakes, particularly early in our careers, and after all, as Lord Justice Baker also pointed out, the consequences of the disclosure here were thankfully not that serious – it had not, for example, inadvertently identified the whereabouts of a child at risk of abduction, or the location of a victim of domestic abuse to a perpetrator. Thankfully, the order against Mr Mursalin was expunged from the record as a result of his appeal being allowed.
Having said that, the other thing is that I think that the case, and the publicity that has surrounded it, may reduce the number of incidents of unauthorised disclosure (and encourage better supervision of unqualified staff). More importantly, perhaps it will reassure parties to children litigation that the court takes their privacy extremely seriously. Anyone breaching that privacy (and that, of course, includes the parties themselves) can expect serious consequences.
The full report of the appeal can be found here (be aware that in the report “Mr M” refers to the client, as mentioned above, and “Mr [M]” refers, rather confusingly, to Mr Mursalin.