Closed material procedures and family proceedings
In X, Y and Z (Disclosure to the Security Service)
 EWHC 2400 (Fam), McDonald J considered briefly at the end of his judgment (paras  to ) the possibility of a third party seeking confidential information in children proceedings by a closed material procedure (‘CMP’. See further Evidence in family proceedings
by David Burrows (2016, Family Law), Ch 20). The applicant might be, as X, Y and Z,
the security services, although application was made there by the police on their behalf. However, it could be the police or other enquirer with a legitimate concern in an aspect of the otherwise confidential proceedings (for a short discussion of X, Y and Z
, see Disclosure and confidentiality: a tale of two cases
in last week's Family Law News).
Of CMP and children proceedings, McDonald J said:
' My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court ...'
Any CMP in family proceedings will be very rare indeed. Typically they may arise in children proceedings where radicalisation is suspected, but also in female genital mutilation or forced marriage protection order applications (under FPR 2010 Part 11).
Closed material procedures: general principles
A closed material procedure was defined by Lord Neuberger in Bank Mellat v Her Majesty's Treasury (No 1)
 UKSC 38,  AC 700 (Bank Mellat (No 1)
' … A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (ie a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties).'
In Al Rawi and Others v The Security Service & Ors
 UKSC 34,  AC 531 the Supreme Court held that the common law would not permit a CMP. Such procedures can only be set up by express statutory provision (the Bank Mellat
case proceeded under Counter-Terrorism Act 2008). European Convention 1950 and the right to a fair trial does not prevent closed material procedures, provided strict conditions are met. Lord Neuberger summarised those conditions in Bank Mellat (No 1)
' …Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it.'
In Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948
, a vulnerable young adult witness confronted by an argument that her confidentiality should be breached so she could give evidence against a father in children proceedings. Lady Hale, confronted with a suggestion that closed material could be considered in that case, answered:
' It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents' interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening)  UKSC 34,  1 AC 531 ... It is arguable that a greater latitude may be allowed in children cases where the child's welfare is the court's paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful ...'
Secondly, she went on to say, there are difficulties inherent in the procedures themselves:
' … The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a ‘gist' of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X's identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedures, therefore, it would not meet the minimum requirements of a fair hearing in this case.'
Closed material procedures in civil proceedings
So where does that leave any proposal that there might be for CMPs in children (or perhaps other family) proceedings? The position is not entirely clear. Al Rawi
provides the starting point for consideration of any such procedure in civil proceedings generally. The case arose from a preliminary issue in a damages claim raised in proceedings where the claimants alleged that the security services had been complicit in the detention and ill-treatment of them by foreign authorities at various locations including at Guantanamo Bay. The pleaded causes of action included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998. The state filed an open defence admitting certain uncontroversial facts, but also a closed defence which referred to material they wanted the court only to consider. They want to deny access to the claimants to this material (ie they wanted it to be closed).
The Security Service, the defendants, said that the disclosure question could not be dealt with on ordinary public interest immunity (PII) grounds. They said there was so much material: this might take 3 years just to decide in respect of which material PII should be claimed. The judge said a CMP was permitted. The Court of Appeal disagreed, and the Supreme Court disallowed the Security Service’s appeal from that decision (with Lord Clarke dissenting).
The Supreme Court held – with a little doubt in the case of children proceedings (see below) – that in civil proceedings CMP should not be permitted in the absence of statutory provision.
Closed material procedures have been used to protect national security (eg cases cited so far in this article) and in proceedings before the Information Commissioner where sensitive information is required to be protected (Browning v The Information Commissioner & Anor
 EWCA Civ 1050,  1 WLR 3848). In a very narrow range of exceptional circumstances they may be ordered in children proceedings (and, eg, subject to the conditions referred to by Lord Neuberger in Bank Mellat (No 1)
at  (above)). The starting point must always be to protect a party’s right to an open trial with all material available to him or her which will be considered by the court, and subject to rules of natural justice.
Use of closed material procedures
Lord Dyson, who gave the main judgment for those who dismissed the appeal in Al Rawi
, summarised the open trial principles. First, he said, trials must be in public:
' There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy  1 KB 256, at p 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd  AC 440, at pp 449H-450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening)  QB 218, paras 38-39, per Lord Judge CJ.'
Certain basic principles of natural justice must be observed by the courts. He cites particular aspects of this, including:
'… A party has a right to know the case against him and the evidence on which it is based. [and] he is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance ...
 … The parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: "Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial."'
Lord Dyson was concerned to emphasise these points – none of them ‘controversial’, he thought – because a CMP, unlike PII, diverged from open justice and natural justice principles. He centred Parliament’s response to this on the prevention from terrorism legislation so far made (eg Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008). Thus, a CMP must be distinguished from PII. With CMP the judge and certain parties (and perhaps special advocates for the parties kept out of the material) will see the sensitive material; but the excluded parties themselves will not. By contrast, in the case of PII only the party who has the documents has access to their information, which is denied to other parties and to the court. The court therefore decides the case with only a part of the relevant evidence.