England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/12/2016

Mrs Justice Pauffley :

Introduction

1. 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.
2. 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.
3. 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.
4. 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

5. 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.
6. 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).
7. 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."
8. 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

9. 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 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 (my emphasis)."
10. 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.
11. 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."
12. 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)

13. 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.
14. 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.
15. 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.
16. 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] 1AC 274 at 281F.

17. 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.
18. 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 a closed material procedure under s.6 of the 2013 Act.
19. So much then for the key stages in the process.

The arguments advanced on behalf of the SSHD

1. Failure to adhere to the Guidance – inappropriately wide request; insufficient notification as to issues; order made without notice

20. Ms Wheeler seeks to argue that the local authority's approach to disclosure does not accord with the President's Guidance, particularly paragraphs 10 – 12. She suggests there has been insufficient regard to the highly sensitive nature of the material sought and a failure to respect the differing roles of the public bodies identified within the Guidance. Ms Wheeler submits that the local authority should have informed the body from whom information is sought about the proceedings, including the matters in issue and what material it is minded to seek. In the first instance there should be discussion and if a hearing is required it should be on notice. Here, says Ms Wheeler, there would appear to have been no sound reason why the hearing was not on notice.
21. In relation to the last point, it would have been better, obviously, if the SSHD had been represented at the hearing on 4 October. But, as the terms of the order reflected, there was a need to make progress in the proceedings; and over the following 4 weeks there was no application to discharge or vary the order. At the hearing on 2 November, the indications were that consideration was being given to an application for a closed material procedure.
22. Ms Wheeler emphasises the need for a "coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved" – see paragraph 10 of the Guidance.
23. I pause to reiterate that had it not been for information properly conveyed to the local authority by SO15, the strong likelihood is that local authority would have had no basis for instituting proceedings of any kind. For the SSHD to now contend that the local authority should have identified in discussions what the proceedings were about, the matters in issue and the information it was minded to seek, defies logic. It is a circular argument of the most bewildering kind.
24. In any event, read as a whole the order of 4 October is transparently clear and amply substantiates the requirement for disclosure. Recital 3 identifies that the court is faced with "an application for a care or supervision order;" and the reason the disclosure order has been sought is to "assist the court in determining (that) application." Critically, recital 4 states that "(t)he court needs information about any extremist or radicalised conduct by adults in the family." To suggest that the issues in the proceedings were imperfectly or inadequately defined is simply wrong.
25. The local authority was in no position to specify precisely what information is sought (beyond the provisions of paragraph 1 of the order) for the obvious reason that it does not know what is held. Whilst I quite accept that requests for disclosure should be approached with, as Ms Wheeler suggests, "particular care and circumspection" it is difficult to identify what more this local authority could have done in terms of specificity or definition. Whether in this instance it would have been of real benefit to the SSHD to have case summaries and draft threshold documents is extremely dubious. Once more I reiterate that had it not been for the "tip off" from SO15, there would have been no reason for this local authority to initiate proceedings. The notion that the SSHD has insufficient information to respond, other than by seeking discharge of the disclosure order, is to my mind fallacious.

2. Failure to comply with FPR r.21.2(3) or have regard to the Guidance - necessity

26. The second complaint made on behalf of the SSHD about the disclosure order of 4 October 2016 is closely related to the first. Ms Wheeler relies upon the terms of r.21.2(3) of the Family Procedure Rules 1991 – "disclosure against a third party is only permitted where it is necessary in order to dispose of the proceedings fairly" and paragraph 7(e) of the President's Guidance – "the need (for judges) 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 would 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'."
27. Ms Wheeler contends that the SSHD and the Passport Office "are almost entirely in the dark about the nature of the local authority's case and the allegations of significant harm." She maintains that disclosure was sought on an erroneous basis, namely that it would "assist" the court.
28. I cannot accept that the wrong test was applied to the disclosure request. The face of the 4 October order (recital 4) records that the court "needs" the information. I reject the suggestion that I would have sanctioned a disclosure order against the SSHD, or any other third party, unless satisfied there was a genuine necessity.
29. In the case of Re H-L (a child) [2013] EWCA Civ 655, the President considered the meaning of "necessary" in the context of Part 25 applications. He said it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful' 'reasonable' or 'desirable' on the other hand, having the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable." That phrase has become indelibly etched upon the minds of all who practise in the family justice system. Judges do not sanction disclosure orders unless they are necessary. When a court order states on its face (as this one does) that the information is needed, that is a statement of necessity, nothing less.
30. Ms Wheeler suggests that another aspect of the requirement for "necessity" is that disclosure should not be sought if the information is available from other sources. Although it is correct that material has been sought both from Sussex Police and [a foreign State's] Counter Terrorism Command, it seems unlikely that either will prove to be beneficial in advancing the local authority's understanding of the key issues. The preamble to the 3 November 2016 order relates that [a foreign State's] Counter Terrorism Command has informed the local authority that it will not derogate from its principle that, as a general rule, it will not disclose what information it may hold on a given individual nor will it disclose whether it holds no information on any given individual.
31. Just prior to the hearing on 2 December, Sussex Police disclosed a disk upon which some 5,000 photographic images are stored. As I understand it, they were taken from a mobile 'phone belonging to one of the parents. Applying common sense, Ms Morgan suggests they are unlikely to be of interest in these proceedings in that if there was material which tended to suggest there had been a contravention of the criminal law, charges would have been laid.
32. Thus the focus remains upon the SSHD. The information held within the department is highly unlikely to become available from any other source.
33. Lastly in this regard, Ms Wheeler argues that contrary to the Guidance the order is inappropriately wide or inadequately defined in that it seeks "all information held in relation to the two named individuals," the father and mother. I observe that the local authority is not privy to the material which might enable the request to be more focussed. There is no substance in the assertion that there has been some failure to heed the terms of the Guidance. All that the local authority has sought to do is to gain an evidential platform to underpin the bald assertions put forward by SO15 and HM Passport Office.
34. As Hayden J observed in The London Borough of Tower Hamlets v. M and ors [2015] EWHC 869, "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."
35. Findings in care proceedings, as in any other kind of proceedings, can only ever be made on the basis of evidence. A mere statement, whether it be maintained by one or a multitude of individuals, however well-regarded and from whichever respected agency, would never be sufficient to satisfy the fundamental requirement for a judicial determination predicated upon evidenced facts.

3. Assessment underpinning the refusal to issue a passport

36. Ms Wheeler's third and final point is that the order for disclosure against the Passport Office seeking "the underlying assessment" which formed the basis of the Secretary of State's decision to refuse to issue a replacement passport was erroneous. Ms Wheeler submits that the assessment is made on the basis of information from multiple sources by individuals experienced in the field of counter terrorism. It is a decision amenable to challenge in the administrative court applying public law principles. Moreover, the process accords significant deference to the decision of an expert decision maker and will be undertaken largely in closed proceedings – XH v. Secretary of State for the Home Department [2016] EWHC 1898 (Admin).
37. Ms Wheeler argues that it was wrong in principle for a judge in the Family Court to seek to revisit such an assessment or reach its own non expert determination by calling for the material upon which the expert assessment was based. In any event, the disclosure of such material would be likely to damage national security, would attract PII and / or be the subject of an application under the Justice and Security Act 2013.
38. Lastly in this regard, Ms Wheeler suggests the correct approach of the Family Court to a decision by the SSHD of this nature should also be one of deference. This means that note should be taken of the decision and such conclusions should be drawn as seem appropriate in all the circumstances of the case, including other available evidence. Whether, Ms Wheeler submits, this refusal of itself or in combination with other available evidence, is sufficient to prove the factual findings to establish the threshold criteria, will be a matter for the court to consider.
39. Mr Parker, on behalf of the Children's Guardian, is entirely right to draw attention to what the President said in Re A (A child) [2015] EWFC 11 between paragraphs 7 and 14 about the requirement for evidence. The President referred to an earlier decision in which he had drawn attention to "the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation."
40. One thing must be made abundantly clear. I have no interest in re-visiting or challenging the expert decision maker's refusal to issue the father with a replacement passport. The decision itself is of only passing interest and could never be of sufficient substance, on its own, to take the case over the threshold for s.31 purposes. I would have no writ to seek to impose my own determination even if I wished to do so; but I do not.
41. However, 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.
43. I have anxiously considered the arguments advanced by Ms Wheeler in favour of the application that the disclosure orders should be discharged. For the reasons given, I cannot accede to that request.

Finally

44. The opportunity for a few hours reflection in the aftermath of a hearing is almost always advantageous. In this instance, it has enabled me to identify the likely impetus for the application made on behalf of the SSHD. The clue came towards the end of Ms Wheeler's oral submissions (see paragraph 3 above). What would seem to have occurred is that the Government Legal Department has already made tentative decisions as to the likely approach if disclosure orders are pursued rather than revoked. Applying the three-stage process outlined by Ms Wheeler, a judgment would seem to have been made that at step three the SSHD will be advised to make a claim for PII. If she decides so to do, then she will sign the required Certificate.
45. The SSHD's application to discharge the disclosure order would appear to be an attempt to short-circuit or head-off what would otherwise be a necessary process of administrative decision making leading in all probability to a claim for PII. To that extent it is an approach to the disclosure issue from the likely end point rather than the beginning.
46. Until there is a PII Certificate containing the SSHD'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 is no appropriate mechanism for action. So soon as the claim for PII is made, consideration will be given to whether or not it should be upheld.
47. For the reasons given, I am not persuaded that it would be just or appropriate to grant the application made on behalf of the SSHD. The orders were legitimately made on the basis of necessity and must be maintained. The application will be dismissed.