Re R (Closed Material Procedure: Special Advocates: Funding)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Cobb |
| Judgment Date | 13 July 2017 |
| Neutral Citation | [2017] EWHC 1793 (Fam) |
| Court | Family Division |
| Docket Number | Case No: CM15C02520 |
| Date | 13 July 2017 |
[2017] EWHC 1793 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Cobb
Case No: CM15C02520
Alison Ball QC and Matthew Fletcher for the Local Authority
Janet Bazley QC and Sharon Segal for the Mother
Mukul Chawla QC and Tom Bullmore (Mr. Bullmore from the Special Advocates' Support Office) Special Advocate for the Mother in the closed proceedings
Ian Bugg for the Father
Ashley Underwood QC (instructed by Nicola Margiotta at the Special Advocates' Support Office) proposed Special Advocate for the Father in the closed proceedings
Jeremy Johnson QC (instructed by the Head of Legal Services) for the relevant Police Constabulary
Doushka Krish for the Children's Guardian of R
David Martin from the Ministry of Justice who submitted correspondence but did not appear at the hearing
The identities of the instructing solicitors in the Part IV CA 1989 proceedings have been omitted in the interests of preserving confidentiality.
Hearing dates: 12 June 2017
Judgment Approved
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
It is a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion (see Lord Mustill in D v NSPCC [1995] 2 FLR 687). The closed material procedure operates to ensure, to the fullest extent achievable, that this cardinal principle is observed even when the material in question, including that which attracts Public Interest Immunity, is highly sensitive.
Where such sensitive material is placed before the court, and requires to be examined and/or tested on behalf of the parties to whom it cannot be disclosed, the Court may invite the Attorney General to appoint a Special Advocate, a security cleared lawyer, to represent their interests (note the formula for the appointment of special Advocates in the civil context: per section 9(1)/(2) of the Justice and Security Act 2013). Special Advocates are appointed by the Attorney General through the Special Advocates' Support Office ("SASO"), which is part of the Government Legal Department.
The issue which arises for determination is how the costs of an instructed Special Advocate should be funded in these family proceedings.
In this instance, the closed material procedure has been invoked within public law ( Part IV Children Act 1989) proceedings concerning one child, R. He is aged He currently resides with his father. They live at a secure location which is not known to the mother, or indeed to the Court. The mother currently has no direct contact with R, nor does she have indirect contact. The mother and R have, however, recently exchanged video-recorded messages.
I propose to say very little about the background facts in this judgment, given its unusual sensitivity. It is sufficient for me to record that shortly after R's birth, the parents separated; there followed lengthy and bitterly contested private law proceedings. When those were at an advanced stage, the father was the victim of a serious and life-endangering attack, which he survived. This led to the trial, and convictions, of a number of people for the offence of conspiracy to murder.
A significant volume of evidence gathered by the Police, both used and unused in the criminal trial, has been disclosed to the parties in these family proceedings.
The Police have assessed, on information supplied, that there is a second, and continuing, conspiracy to murder the father; that information has been shared with the parties to these proceedings. The Police, however, resist disclosure of a small quantity of information relevant to that continuing conspiracy, arguing that disclosure of the information would materially heighten the risk to the father, to R, and to others, and would unhelpfully expose police operational details. The Special Advocate instructed on behalf of the mother has accepted that disclosure of this material would be contrary to the public interest, a view which – after a closed material hearing in the autumn 2016 – has been confirmed by the Court. This small quantity of information is thus currently not known to the parties in these family proceedings. I have recently been shown it. It has been confirmed by counsel for the Police to the parties in the family proceedings that there is no evidence that the alleged continuing conspiracy involves the mother.
There have been three closed material hearings in the case, two before Pauffley J and one before Theis J. At those hearings, the mother has been represented by a Special Advocate who has thus seen the limited undisclosed material, but the father has not participated in the closed hearings, by Special Advocate or at all. The mother's Special Advocate (and the support offered to him by the SASO) has been funded so far by the Police authority which investigated the original crime. Mr. Johnson QC informed me that the Police agreed to fund the mother's Special Advocate out of pragmatism, rather than any sense of legal obligation.
At a case management hearing on 3 March 2017, Pauffley J directed that the father should have a Special Advocate for future closed material hearings. Her order contained the following provisions about funding:
i) "Upon the court determining that such circumstances engaged his rights pursuant to Article 6 of the European Convention on Human Rights;
ii) Upon the Court further determining that it was vital for [the father] to have the benefit of a Special Advocate (selected from the AG's panel) to afford him equivalent status and representation in closed hearings and to prevent a denial of justice;
iii) Upon the Court determining in accordance with the President's Guidance dated 26 March 2015… the Court shall identify the most appropriate means by which such representation should be funded and concluding that justice will only be served if the costs are met by the Legal Aid Agency;
iv) It is ordered that … The costs occasioned shall be borne on the public funding certificate of [the father] and are determined by the court who be critical to enable his right to a fair trial to be observed."
Although Mr. Johnson has sought to argue at this hearing before me that Pauffley J's direction for the appointment of a Special Advocate for the father could and should be discharged in its entirety on the basis that there is no longer a need for any further closed material process, I declined to accede to his submission. There has been, so far as I can tell, no change in circumstances since Pauffley J's order; the Police maintain that the threat to the father and to R (and others) remains just as significant now as it was in March 2017. In any event, having reviewed some of the relevant documentation filed, and having heard the detailed submissions of the parties, I am satisfied that there is a need for at least one further closed material hearing at which I will review the sensitive information with a representative of the Police, and afford the Special Advocates opportunity to consider it. At that hearing, I will first need to determine afresh whether any of the sensitive material can in fact be disclosed into the Part IV proceedings, and if I conclude that it cannot or should not, I will consider the extent to which it needs to be tested in closed session, and if so in what way. In reaching my decisions about this, I will specifically focus on the extent to which (if at all) the sensitive material informs:
i) The ongoing risk to R of having any form of interim direct or indirect contact with his mother;
ii) The continuing central issue in the case, namely, with whom R should live;
iii) The issue of contact between R and the parent with whom he does not live;
iv) The question of harm or likelihood of harm relevant to the threshold criteria set out in section 31 CA 1989.
I am satisfied that at the closed hearing the interests of both parents should be represented. The father's significant and non-derogable rights under Article 2 ECHR are plainly engaged here, as are his clear and well-defined rights under Article 6 (as recognised by Pauffley J) and Article 8 (ibid.). Mr Johnson in fairness acknowledges that if there is to be a further closed hearing, it would be "obviously unfair" if the father were to be unrepresented.
The Attorney General has indicated that he will not instruct a Special Advocate for the father without a funding arrangement for the Special Advocate and SASO support being in place. No party volunteered to fund the Special Advocate and the SASO team for the father, and each relevant party argued vigorously that the responsibility should fall on another. While some of the arguments focused on the particular facts of this case, others elevated the funding dispute to one of wider principle and general application. In debating the issue with counsel, I suggested that a cost cap or other form of cost control may appropriately be imposed in this case; this was welcomed in some quarters but not in others.
Having heard argument, I reserved judgment.
Following the court hearing, Mr. Bullmore, from the SASO on behalf of the mother, wrote to the court with further submissions on the issue of costs control or a costs cap; this prompted a...
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SK (Father) v RO (Mother)
...also have to have regard to all parties' Article 8 rights. 17 I have had close regard to the decision of Cobb J in Re R (Closed Material Procedure: Special Advocates: Funding) [2017] EWHC 1793, where he had to grapple with similar 18 It is important to be clear that there is no perfect solu......