The police had obtained intelligence that the imprisoned father of a ward had taken out a contract to murder the child’s mother. As a consequence they took the child and his mother into police protection, which they threatened to withdraw if the father was awarded contact by the court. The police refused to reveal the detail of the alleged contract to the parties and asserted that this information must, in the public interest remain confidential and undisclosed.
Held: The only way the father could properly challenge the evidence against him was by the use of special advocates, to whom information was imparted, and who were able, without disclosing that information to the father, to take sufficient instructions to enable the evidence to be tested.
McFarlane J discussed and gave guidance on the use of special advocate systems in family proceedings, saying: ‘A special advocate represents ‘the interests of’ a party, as opposed to fully representing that party (as a fully instructed legal team would do). In the context of the SIAC, the key functions of a special advocate are to become briefed by the party and his legal team, but thereafter to receive disclosure of all of the evidential material, both ‘open’ (ie disclosed fully to the party and his legal team) and ‘closed’ (not disclosed to the party or his legal team). A special advocate will seek to achieve the disclosure of such part of the closed material as may properly be disclosable (either fully or in a gisted or redacted form). A special advocate represents the interests of the party at closed hearings from which the party and/or his legal team are excluded. Following such a process it is normal for the SIAC to issue both an open and a closed judgment.’ and ‘In the light of the wardship court’s duty to investigate the ‘contract to murder’, and in the light of the fact that initially the MPS were declining to permit disclosure of any of the information held by them, it was essential for the court to establish some form of filter or buffer between the MPS and the parties in the wardship proceedings through which the relevant evidential material could pass or otherwise be assessed by the court in a manner that respected the parties’ rights under Article 6(1) of the European Convention and in a manner that was as far as possible commensurate with any countervailing claims of public interest immunity. In this case the special advocate procedure allowed the court and the special advocates to discharge the duty described by Baroness Hale of Richmond in testing ‘with the utmost scepticism’ the MPS’s blanket assertion of PII. The result was that the vast majority of the MPS material (some 90% in my estimation) was disclosed in one form or another. In relation to the small amount of material that remained undisclosed, the special advocates, again with Baroness Hale of Richmond’s strictures in mind, conducted a process of cross-examination and submission designed to test the material and enable the court to see any weakness there may be in its evidential value.’
Judges:
McFarlane J
Citations:
[2009] EWHC 2440 (Fam), [2010] 1 FLR 1048
Statutes:
European Convention on Human Rights 6
Jurisdiction:
England and Wales
Cited by:
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights, Litigation Practice
Updated: 06 May 2022; Ref: scu.424967