Re B and C (Children) (Change of Name: Parental Responsibility: Evidence)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 08 December 2016 |
| Neutral Citation | [2016] EWHC 3171 (Fam),[2017] EWHC 3250 (Fam) |
| Docket Number | Case No: ZE16C00518 |
| Court | Family Division |
| Date | 08 December 2016 |
[2016] EWHC 3171 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Pauffley
Case No: ZE16C00518
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and
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Sarah Morgan QC and Steven Ashworth (instructed by Director of Law and Governance, LB Tower Hamlets) for the Applicant
Alex Verdan QC and Chris Barnes (instructed by FMW Law) for the mother
Kieran Pugh (instructed by Warrens Family Law) for the father
Tim Parker (instructed by Gary Jacobs & Co) for the Children's Guardian
Marina Wheeler QC for the Secretary of State for the Home Department
Hearing date: 2 December 2016
Judgment approved by the court
Introduction
I am faced with what might appear to be a situation without a solution bedevilled with arguments of considerable circularity. The key question relates to disclosure into Children Act care proceedings of information held by the Secretary of State for the Home Department (SSHD) who is not a party to the proceedings. The issue which may be novel, in the sense that it has not arisen before in a case of this kind, is whether there should be any disclosure of information.
By her application of 22 November 2016, the SSHD seeks a discharge of a disclosure order made without notice on 4 October 2016. That order was revisited on 3 November 2016 in the presence of a member of the government legal department, on behalf of the SSHD, when further time was afforded so that she might decide on future steps.
This is not one of those cases, apparently, where there is likely to be an application for a declaration that there should be closed material process pursuant to s.6 of the Justice and Security Act 2013. The situation here, as it emerged during the final minutes of the oral submissions made by Ms Wheeler QC on behalf of the SSHD, is that if the extant orders for disclosure are not discharged the "strong likelihood" is that the claim for public interest immunity, if successful, will result in a decision that the sensitive material would not be considered at all.
In that event, given the centrality of the initial information conveyed to the local authority, there must be doubt as to whether there would be a proper foundation, substantiated by evidence, for the creation of a s.31 threshold document.
Essential background
It is unnecessary to provide more than a scant history so as to resolve the disclosure issue. There is one very young child born to parents who live in East London. Proceedings were begun on 26 July 2016 in the East London Family Court. In accordance with the President's Guidance, "Radicalisation Cases in the Family Courts," dated 8 October 2015, the application was transferred to the Royal Courts of Justice and allocated to me. The child was made the subject of an interim supervision order on 1 August 2016.
As Ms Morgan QC correctly relates, there would have been no proceedings – the local authority would not have been seeking to interfere in the lives of this child and these parents – had it not been for information communicated to the local authority by SO15 (the Counter Terrorism Command, a Special Operations branch within London's Metropolitan Police Service).
Two pieces of material led to the initiation of the application for a care order. The first stemmed from the assessment of HM Passport Office that the father is " an Islamist extremist who has previously travelled to Syria and engaged in terrorism-related activities" and that he is " likely to travel overseas to Syria in the near future … to engage in further terrorism-related activity, including fighting alongside an Islamist terrorist group."
A very similar form of words was provided to the local authority on behalf of SO15 – " information suggests that (the father) holds an Islamist extremist mind-set. Information suggests that (the father) travelled to Syria in 2013 and 2015 where, it is assessed, he was fighting with an Islamist extremist group."
Orders for disclosure against the SSHD
On 4 October 2016, I made a disclosure order against the SSHD. It was made without notice " due to the need to progress these proceedings and the care planning for the child." The order made clear (at recital 4) that the court " needs information about any extremist or radicalised conduct by the adults in the family." The order sought " all information … pertaining to the individuals listed below (the parents) including butnot 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 (my emphasis)."
The SSHD was given leave to apply to vary or discharge the order upon 24 hours' notice in which event the respondent parties were to be excused attendance. There was no such application.
On 3 November 2016, I again considered disclosure. The first recital to the order relates that the SSHD had " declined to disclose any information beyond a letter … on the grounds that to do so will prejudice national security; and that the SSHD will resist any further application for disclosure and will if necessary consider making an application for closed material proceedings under the Justice and Security Act 2013." A further recital noted that " no applications" had been " made to vary or discharge the orders for disclosure or to withhold disclosure on the basis of public interest immunity; or for a declaration that these are proceedings in which a closed material application may be made to the court." It was recorded that " the initial part of the hearing had been attended by Mr Michael Fitzgibbons of the Government Legal Department who represents the SSHD" and the court would allow " the SSHD time to consider her position before deciding on future steps."
The order contained a detailed preamble of the required written notice, the need for directions (unless the application could be determined on the papers) and the potential for specially represented parties if an application were to be made pursuant to s.6(2) of the Justice and Security Act 2013. It was further provided that in the event the SSHD intended to make an application for a declaration under the Justice and Security Act, written notice should be served upon the parties in accordance with CPR r.82.21(1)(a) by 18 November 2016. Any application for public interest immunity and / or that these are proceedings in which a closed material application may be made was to be filed, on notice to all parties, by 2 December.
Key stages in the SSHD's decision as to whether to claim PII or seek a closed material procedure (CMP)
The key stages involved in the SSHD's consideration of the potential disclosure of sensitive material are most helpfully described within Ms Wheeler's Skeleton Argument.
The first step is for legal advisers to consider whether the material sought or held is relevant and material to the proceedings. In a case of this kind, it would only be disclosable if it is necessary to dispose fairly of the proceedings. To judge relevance and materiality, it is necessary to consider the issues in play in the proceedings i.e. the orders and factual findings sought as well as the evidence already before the court.
Step two requires officials, in the first instance, to undertake a more detailed assessment of the sensitivity of the information. The critical question is whether there is a real risk that disclosure would cause substantial harm to an important public interest. If disclosure would not cause substantial harm it would be made. If, however, the assessment was that disclosure would harm the public interest then material "attracts" PII and a claim must be considered.
The third step 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 assisted by advice from those involved at stages 1 and 2. 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] 1 AC 274 at 281F.
Within her written argument, Ms Wheeler stated that if the SSHD decides to claim PII, she will finalise and sign a PII Certificate. That Certificate is the SSHD's statement of her own judgment as to the likely harm to the public interest caused by disclosure and the weight to be given to competing public interests. The Certificate will generally contain an open and a closed part and a sensitive schedule. Ms Wheeler submits that determining the extent to which the reasons for claiming PII may be put in 'open,' or should go into 'closed,' is a decision which of itself requires careful consideration.
I quite accept, as Ms Wheeler suggests, that the court would make the final determination about whether material should be disclosed in the public interest but that considerable weight will be given to the SSHD's view as to where the balance of the public interest lies. If a claim for PII is made and upheld, the material would be excluded from the proceedings. However, if the material is judged to be highly relevant and the public interest in disclosure so pressing that it is inappropriate to claim PII, an application may be made for...
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