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Edward Bennett
Edward Bennett
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Third party disclosure: public interest immunity and closed material procedures
Date:3 FEB 2017
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Solicitor Advocate

Re C and the necessity for non-party disclosure

The case of Re C (A Child) [2016] EWHC 3171 (Fam) (case heading: London Borough of Tower Hamlets v M and F and Others), Pauffley J raises a number of issues over where the welfare of a child may be treated as in conflict with the needs of national security (as asserted by SO15: the Counter Terrorism Command, a Special Operations branch within London’s Metropolitan Police); and the extent to which the Secretary of State for the Home Department (SSHD) should disclose information, as a third party, to the parties in care proceedings. It hints at a procedure for closed material procedure (CMP) and refers to possibilities of an application for public interest immunity (PII) for the material in question.

In Re C care proceedings were started by the local authority as a result of information provided by SO15, including that on information from the passport office, they believed the father of a child held ‘an Islamist extremist mind-set’. The local authority needed evidence to support their application: the onus of proving the care application was on them. They obtained a non-party disclosure order from Pauffley J, without notice to the Home Department (the reason for this was said ‘due to a need to progress the case’ (para [9])). Pauffley J explained the court’s request that SO15 provide information as follows:

'[9] … The order sought ‘all information … pertaining to the individuals listed below (the parents) including but not limited to all witness statements, interview records, exhibits, crime reports and Police National Computer records and including any information from other jurisdictions which it is at liberty to disclose.' (Emphasis added)

Public interest immunity and closed material procedures

The application before the court was to discharge that order. SSHD told the court that if the order was retained it might apply for PII for the material (para [17]). It is perhaps worth recording here, that if PII is ordered by the court, no-one sees the material (save for the party with it, if they are a party: the Home Department was not in this case); whereas if a CMP is ordered (if the court has power to do so: whether a court has inherent jurisdiction to do this was questioned in Al Rawi (below)) the excluded parties do not see the material, but at least the court, other parties and the special advocates do.

The claim for a CMP is explained, on analogy with Justice and Security Act 2013 (JSA 2013) and Civil Procedure Rules 1998 Part 82, in Evidence in family proceedings by David Burrows (Family Law, 2016) Ch 20. The balance between a claim for PII or an application for CMP was explained by Pauffley J in relation to the Home department decision-making as follows:

'[16] [This] involves determining whether to claim PII or make an application under the Justice and Security Act 2013. This is a decision taken by the SSHD…. The decision maker will have to consider the importance of the information to the issues the court has to decide, and form a view as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure, in order to do justice within the proceedings: "If a document is relevant and material then it must be disclosed … unless a breach of confidentiality will cause harm to the public interest which outweighs the harm to the interests of justice caused by non-disclosure" per Lord Templeman in R v CC (West Midlands) ex parte Wiley [1995] 1AC 274 at 281F.'

This emphasises the importance of full disclosure as between parties and the court (and see, in relation to CMP, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531), which is precluded by PII and any CMP.

Procedure for third party disclosure and PII

FPR 2010, r 21.2 (orders for disclosure against a person not a party) does not get many outings in family proceedings (Family Law online gives only one reference, namely P V P (Financial Remedies: Disclosure) [2012] EWHC 1733 (Fam); though when that case went to the Court of Appeal as Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, [2013] 1 FLR 1095 r 21.2 is also referred to). The rule enables the court – where statute permits – to order disclosure against a non-party (r 21.2(1)), such as the police, health departments etc. An application can be made without notice (r 21.2(2)(a)) but, in all cases, must be supported by evidence (r 21.2(2)(b)); or, presumably, plead the lack of evidence (as in Re C (above)).

The rule under review here is r 21.2(3) is: ‘(3) The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs.’ This stresses the discretionary nature of the jurisdiction. In A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673, Munby J explained (especially at para [60]) the limited powers of even the Family Division to make orders against non-parties. Pauffley J emphasised the term ‘necessary’ which in most contexts might be thought to limit the ambit of the principle; but here, as seen by Pauffley J, depends on the view of the judge as to the need for information from non-parties. Rule 21.2(3) is derived from CPR 1998, r 31.17(3).

The meaning of this rule – stressing, like Munby J above, that disclosure is the exception, rather than the rule – was explained in Rowe & Ors v Fryers & Anor [2003] EWCA Civ 655, [2003] 1 WLR 1952 (where the appeal against non-party disclosure was dismissed):

'[9] CPR 31.17 applies, as paragraph (1) makes clear, when disclosure is sought [from] a person who is not a party to the proceedings. Many and varied circumstances are envisaged. Examples that come readily to mind are records held by local authorities about children, police accident reports in road traffic cases and documents held by bodies such as the Health and Safety Executive, hospitals and so forth…
[10] The word "only" in paragraph (3) emphasises that disclosure from third parties is the exception rather than the rule. Disclosure will not be routinely ordered but only where the conditions there specified are met….'

In Re C it is not stated under what statute Pauffley J proceeds.

Rule 21.2 goes on to require that the court ‘specify the documents or the classes of documents’ to be disclosed (r 21.2(4)(a)). It enables the court, in terms similar to CPR 1998 rr 31.17 and 31.19, to require a party to specify what documents are not in their control (r 21.2(4) and (5)). Disclosure could take place at a particular time and place (r 21.2(5(b); and see r 24.2(2) for documents and a witness summons). A non-party cannot be compelled to disclose a document which is covered by privilege (r 21.2(6); eg self-incrimination privilege) or, perhaps, by confidentiality.

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Home Department opposition to disclosure

In submissions made on behalf of SSHD there were three main arguments put forward for discharge of Pauffley J’s without notice order:
  1. That the local authority had not, said SSHD, complied with the President’s Guidance on Radicalisation cases in the family courts of 8 October 2015 (https://www.judiciary.gov.uk/wp-content/uploads/2015/10/pfd-guidance-radicalisation-cases.pdf) especially paras 10-12.
  2. That the court had not complied with FPR 2010, r 21.2(3) on assessment of whether SO15 information was ‘necessary’.
  3. That a family courts judge should not revisit the expert assessment of the decision-maker in the passport office. This could be done in the Administrative Court on public law principles.
(1)  Radicalisation Guidance

The Radicalisation Guidance paras 10-12 stress the need for co-operation between police and local authority (as does Children Act 2004 s 11 and Working Together (2015)). It refers to the quote from Hayden J (cited by Pauffley J at para [34]) in London Borough of Tower Hamlets v M and Others [2015] EWHC 869 (Fam), [2015] 2 FLR 1431, Hayden J (at para [18(iv)]) in which he said:

'All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter-terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail.'

On this first objection to disclosure Pauffley J suggested that the SSHD had mounted a ‘circular argument of the most bewildering kind’ (para [23]). How could the local authority specify the information it wanted when the SSHD’s failure to disclose made it impossible to know what information they held (para [25])? She rejected the SSHD submission.

(2) Disclosure order’s failure to comply with rules or guidance 

Counsel for SSHD based her submissions in this central passage on FPR 2010, r 22.1(3) (set out above) and on the Radicalisation Guidance at para 7(e), which reads (in the passage cited by the judge):

'(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is "necessary to enable the court to resolve the proceedings justly"….'

Pauffley J’s reply to this was to reject that she had applied the wrong approach to the disclosure request. She stressed that judge’s do not order disclosure unless it is needed; and therefor an order which says this ‘is a statement of necessity, nothing less’ (para [29]). This slightly begs the question – was the order necessary? – but in a child welfare case perhaps it is sufficient. It is not the criterion for the case management decision as to whether to permit expert evidence of welfare reports as is well-known from Children and Families Act 2014, s 13. Pauffley J touches on that definition of ‘necessary’ but moves on, swiftly (para [29]).

(3) Passport office decision

The judge said she had no wish to re-visit the passport office decision. However the parents and child have a right to affair trial. The SSHD material might – it was impossible to tell, yet – assist the local authority in presenting their case. It might then assist the court in deciding the case:

'[41] … the information upon which the decision was based could be highly relevant to the fundamental question: whether there is a likelihood that this child would suffer significant harm if an order were not made. To that end, the local authority and the court have a legitimate interest in the material which founds the decision not to re-issue the father with a passport.
[42] This child and these parents have a right to a fair trial. They have a right to respect for their private and family life. Unless there is a disclosure mechanism for receiving and considering relevant, highly sensitive material from the SSHD then it is difficult to envisage a future for this application.'

Necessity and a fair trial

Non-party disclosure must be necessary (r 21.2(3)). It is the exception not the rule (see r 21.3(3) and the similar wording explained in Rowe & Ors v Fryers & Anor (above)). The welfare of children whose interests come first (H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338) may dictate the way any balance as between may fall as between a fair trial and national security.

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