Re C (A Child) (Application for Public Interest Immunity)
| Jurisdiction | England & Wales |
| Judgment Date | 31 March 2017 |
| Neutral Citation | [2017] EWHC 692 (Fam) |
| Year | 2017 |
| Date | 2017 |
| Court | Family Division |
Care proceedings – Public interest immunity – Secretary of State for the Home Department seeking to avoid disclosure of material – Procedure – Relevant considerations – Whether risk to national security – Impact of non-disclosure on care proceedings – Application of President’s Guidance.
Both parents had been stopped at airports and questioned pursuant to Sch 7 of the Terrorism Act 2000. In August 2016 a letter from HM Passport Office refused the father’s application for a replacement passport, on the basis that he was an Islamist extremist who sought to travel to Syria for jihad. On 4 October 2016, in the course of care proceedings relating to the children, disclosure orders were made requiring information from the Home Secretary. After a month the judge received a letter from the Government Legal Department (the Department) indicating that there was material which, for reasons of national security, the Home Secretary was not at liberty to disclose.
In December 2016 the judge required the Home Secretary to make any application for public interest immunity (immunity) and/or a declaration pursuant to s 6(2) of the Justice and Security Act 2013 (JSA 2013), on notice to all parties, by 20 January 2017.
On 20 January the Home Secretary provided a document summarising the facts and chronology leading to the refusal of the father’s passport application. In an accompanying letter, the Department confirmed that it was not going (a) to invite the court to make a declaration under the JSA 2013 or (b) to try to invoke a closed material procedure, explaining that the Home Secretary was continuing to make preparations for a potential immunity application but that there were a number of unresolved complications. Stating that it was ‘mindful of the need to progress the proceedings’ the Department requested a closed hearing of an hour and a half to make submissions in relation to sensitive material and suggested that some closed documents would be made available in advance of the hearing. Two members of the Department then delivered to the judge personally a very small bundle of closed documents; this was necessary because the judge’s clerk was not permitted to handle closed material. The bundle consisted of closed submissions and a sensitive schedule (or damage assessment) which explained (a) why the Home Secretary considered that the relevant material should be withheld; (b) the nature of the damage were disclosure to be ordered; and (c) the reasons for delay in progressing a formal claim for immunity. It did not include the sensitive material itself. Prior to the hearing the judge read the bundle, and concluded that a closed hearing was necessary.
However, both the father’s and the local authority’s legal teams then objected to a closed hearing, querying the procedure being applied. The hearing was adjourned and open submissions were requested from the Home Secretary as to the basis on which a closed hearing was required; written submissions in response were produced by the parties, again objecting to a closed procedure without a relevant application. The Home Secretary then issued an application for immunity, and it was agreed that this would be dealt with in a closed hearing. To avoid unfairness, a copy of the Home Secretary’s original closed submissions was provided to the parties in advance of the closed hearing.
Held – (1) Where the Home Secretary was faced with disclosure orders relating to material which was or might be sensitive and where the likelihood was that public interest immunity would be asserted, it was incumbent upon the Government Legal Department to set up a process for early and definitive decision making. The earlier that precision could be achieved the better. Until there was a public interest immunity certificate containing the Home Secretary’s judgment as to the harm to the public interest that would be caused by disclosure and the weight to be given to competing public interests, there was no appropriate mechanism for action. While acknowledging that the Department was an over-stretched organisation with many competing calls upon its time, there needed to be mechanisms for significantly swifter specialist advice and consequent action. Delays, lack of clarity and inconsistency in the Home Secretary’s approach were unhelpful and naturally enough had given rise to scepticism and suspicion. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency (see [14], [16]–[19], below).
(2) The delivery of the closed material, involving as it did a meeting between the judge and the members of the government legal department, had created a potential for unfairness. Nothing had been said of any substance during the meeting, but with the benefit of hindsight the court should not have read the closed documents prior to hearing from the parties. However, whilst a full damage assessment had been provided to the court in the closed procedure, the material which underlay the immunity claim had still not been seen by the judge. The case law established that the minister who signed the certificate must see the material in order to assess sensitivity, the potential damage to the public interest (were the material to be disclosed) and to conduct the balancing exercise, but the same imperative did not apply to the judge. To address the potential for unfairness the Home Secretary had subsequently placed the certificate, the legal submissions and the gist in open, enabling the parties to know and advance submissions in relation to the public interest factors pertinent to the balancing exercise set out in R v Chief Constable of the West Midlands Police, ex p Wiley [1995] 1 AC 274 (see [6], [20], [21], [23], [27], [28], below).
(3) The material over which immunity was claimed could not be disclosed for fear of a real risk of real damage to national security. The court was not convinced that care proceedings would conclude for want of threshold criteria in the absence of further disclosure from the Secretary of State, or that the local authority would be in no position to safeguard the child or justify interference in her life without further disclosure. While denial of a replacement passport would not be, of itself, sufficient to establish the threshold criteria, clearly it was a factor of relevance which could be taken into account as part of the evidential picture. The type of order sought by the local authority (whether care or supervision) and the possibility of alternative potential safeguarding measures would have made no difference to the decision; the galvanising imperative of protecting national security overrode other matters such as the appropriate order at the conclusion of proceedings (see [48], [50], [51], [54], [55], below).
(4) It seemed highly unlikely that the relevant material would have advanced the local authority’s case in the care proceedings to any significant degree. On any view, the material could not be used by the local authority for the purpose of legal proceedings, whether to inform its assessment of risk or for the purpose of commissioning any expert intervention. Moreover, the material did not advance an understanding of the parental relationship or contact with or intentions towards the child (see [58], below).
(5) Bearing in mind The President’s Guidance – Radicalisation Cases in the Family Courts,8 October 2015, it was difficult, if not impossible to avoid seeking disclosure of material which might be subject to public interest immunity when the local authority and the court had no basis for concluding that this would be so. The disclosure orders made in this case had not been couched inappropriately widely; the Home Secretary had been asked only to reveal material which she was at liberty to disclose (see [60], below).
Statutory provisions referred to
Justice and Security Act 2013, s 6(2).
Terrorism Act 2000, Sch 7.
President’s Guidance – Radicalisation Cases in the Family Courts, para 7.
Cases referred to
Re C (a child) (care proceedings: disclosure) [2016] EWHC 3171 (Fam), [2017] 4 WLR 19.
R v Chief Constable of the West Midlands Police, ex p Wiley [1995] 1 AC 274, [1994] 3 All ER 420, [1994] 3 WLR 433, HL.
Application
The Secretary of...
To continue reading
Request your trial
-
Re C (A Child) (Care Proceedings: Dismissal or Withdrawal)
...Disclosure) [2016] EWHC 3171 (Fam); [2017] 4 WLR19 and In re C (A Child) (No 2) (Application for Public Interest Immunity) [2017] EWHC 692 (Fam);[2017] 2 FLR 1342.Parties’ positions3 The local authority considered its position following the outcome of the application bythe Secretary of Stat......
-
Essential Daily Guidance for Proceedings Concerning Children
...Child) (Procedural Requirements of a Part 25 Application) [2015] EWCA Civ 539. 25 Re C (A Child) sub nom Tower Hamlets LBC v M, F, C [2017] EWHC 692 (Fam). 26 AD and AM (Fact-Finding Hearing) (Application for Re-Hearing) [2016] EWHC 326 (Fam). 27 Re H (A Child) (Analysis of Realistic Option......