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That’s when I start promising the world to a brand new girl I don’t even know yet

 

Next thing, she’s wearing my Rolex.

 

I wrote about Part 1 of the Pauffley J hearing about alleged radicalisation where all of the evidence that might prove whether threshold criteria existed or not was in the hands of the security services and they (having originally tipped off the LA that they should do something) decided they didn’t want to cough up the material.

https://suesspiciousminds.com/2016/12/28/cloak-and-dagger-threshold/

I feel very very uncomfortable about this sort of thing.  I fully understand that in order to protect the citizens of this country, the security services will watch individuals and don’t want those under suspicion to know exactly what the security services knows and how they know it. I get that. But by the same token, if a parent is being accused of being a risk to their child and faces the possibility of losing their child, they are entitled to see what the evidence against them is and to test it.

The alternative is that we end up with a set of care proceedings run along the lines that Christopher Booker imagines happens all the time, where the parents aren’t told what they are supposed to have done and don’t get to fight the allegations.

I’m not sure how you square that circle. My gut feeling is that the children probably stay with the family unless and until the security services either have enough to charge the parents with a criminal offence, decide there is no risk, or that the information known can be safely shared without putting others at risk.

Anyway, you may remember from Part 1, that it ended with the Security services telling the Court that they were going to get a Public Interest Immunity (PII) certificate signed by the Secretary of State about the documents.

This is what happened next.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/692.html

C (A Child), Re (No 2) (Application for Public Interest Immunity) [2017] EWHC 692 (Fam) (31 March 2017)

 

Those representing the Secretary of State asked for a CLOSED hearing. In basic terms (and I’m massively oversimplifying to make it possible for normal people to follow) that means that the lawyers for the Secretary of State would address the Judge about the documents and why they could not be shared, and nobody else would be in the room.

 

 

Discussion of procedural steps

 

  • I quite accept that the courts and the SSHD are even now in the relatively early stages of grappling with the problems consequent upon proceedings of this kind. I would be the first to accept that I have been engaged in a learning exercise. I suspect the same may be true for those advocates who have not hitherto had much experience of dealing with cases where PII might be asserted in circumstances such as these.
  • There have been several complicating factors leading to delay identified by Ms Wheeler in CLOSED session which are inappropriate for inclusion within this OPEN judgment.
  • At all events, there are some obvious conclusions to be drawn from events in this case. The first is that where the SSHD is faced with disclosure orders relating to material which is or may be sensitive and where the likelihood is that PII will be asserted, it is incumbent upon the GLD to set up a process for early and definitive decision making.
  • The spectre of a potential PII claim was manifest in this case from as far back as 3 November 2016. On that day, I received an urgent letter from the GLD, indicating there was material which for reasons of national security the SSHD was not at liberty to disclose. A further period of 28 days was requested to further consider the information with a view to either effecting disclosure, advancing a claim for PII or seeking a declaration under s.6 of the JSA 2013.
  • By the time of the 2 December hearing, the indications were that if the SSHD was unsuccessful in her bid to revoke the 4 October 2016 disclosure order, she would claim PII. As I observed towards the end of the December judgment, until there was 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 was no appropriate mechanism for action.
  • It is disappointing to say the least that the PII Certificate was not issued until 7 March 2017, some three months later, and at a time when no fewer than four distinguished legal teams had spent a great deal of time and effort considering a landscape which did not comprise a claim for PII. Had the claim been made sooner, those endeavours would have been largely unnecessary.
  • Doubtless the GLD is an over-stretched organisation with many competing calls upon the time of those who work within. However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action. Had there been an application for PII in the autumn of last year, it would have been resolved before Christmas; the hearing of 2 December would have been superfluous to requirements; and the care proceedings would not have been mired in procedural argument for more than three additional months pending resolution of these issues.
  • As Mr Twomey suggests, delays, lack of clarity and inconsistency in the approach of the SSHD are unhelpful and tend to give rise naturally enough to scepticism and suspicion. The earlier there is (can be) precision the better. The stop / start approach of the last four to five months has been distinctly unhelpful. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency.

 

Potential for conflict

 

  • Arising out of events on 25 January 2017, there was the potential for unfairness which Mr Twomey was right to identify in his written submissions. As he correctly identifies, on 25 January I met briefly with two members of the GLD to take possession of a bundle of CLOSED material; and I concluded that a hearing in CLOSED would be required. Mr Twomey maintained that the parties were unaware of what was said on behalf of the SSHD on that occasion and what I was shown. In fact, as Ms Wheeler related in her submissions of 6 February 2017, the documents I had read were CLOSED submissions and a Sensitive Schedule (also known as a damage assessment) explaining why the SSHD contends material should be withheld, the nature of the damage were disclosure to be ordered and the reasons for delay in progressing a formal claim for PII. But I was not provided with the material over which a claim for PII is being considered.
  • As for anything discussed between the GLD lawyers and me on 25 January, I can confirm that nothing of any substance was said. The sole purpose of the meeting was so as to comply with the necessary procedures for dealing with CLOSED material. My clerk, for example, is not able to handle CLOSED material. Thus it was necessary for me to meet with Mr Fitzgibbons and Mr da Silva to take possession of and later relinquish the CLOSED file.
  • Mr Twomey asked me to confirm whether or not those documents form part of the PII application. If they did not, then it would be necessary to consider whether I could fairly determine the PII application and / or how those documents could be treated so as to ensure a fair hearing.
  • In response to those submissions, I indicated that Ms Wheeler’s CLOSED submissions from late January had not been made available to me in readiness for the hearing on 15 March. Ms Wheeler’s initial view had been that there was no need for me to consider her earlier submissions afresh given that more pertinent material was now available in the form of the OPEN Certificate. Given the potential for a sense of unfairness if the January submissions were not once more made available, a copy was provided in advance of the CLOSED hearing.
  • No party sought to suggest there was any reason associated with events on 25 January, materials read or discussions with the GLD, which could have prevented me from dealing with the claim for PII. Accordingly, satisfied as I was that there was no reason to recuse myself, I convened a CLOSED hearing at which I heard Ms Wheeler’s oral submissions and probed a number of issues.
  • There was no judgment at the end of the CLOSED hearing. I indicated I would be preparing an OPEN judgment.

 

 

 

The Court considered the principles in deciding whether documents should be withheld from distribution under the Public Interest Immunity process

 

 

 

The three steps involved in making a PII claim – R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274

 

  • There are three required steps when the SSHD considers whether to make a claim for PII. First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings – (Certificate §11). Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause ‘real damage’ or ‘serious harm’ to the public interest – (Certificate §13 and 19). Third, if applying the ‘real damage’ test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings. The factors in favour are set out in the Certificate at §18; those against between §§19 and 26.

 

 

Slightly disappointed that Pauffley J did not indicate that R v Chief Constable of the West Midlands Police, ex parte Wiley is a party guy and he knows it, but bigger fish to fry, no doubt.

 

 

 

Positions of the parties

 

  • The local authority’s position is that it will await the outcome of the PII hearing and will then take stock. Ms Morgan understandably submits there is a limitation upon the assistance she can give in relation to the Wiley balancing exercise, given that she has no knowledge of the material over which the SSHD asserts her claim for PII. Ms Morgan does though make a number of observations particularly as to the sufficiency of primary evidence absent disclosure. Ms Morgan’s overarching observation is that I should approach the balancing exercise on the basis that if the care proceedings conclude for want of established threshold criteria, the likelihood of the local authority being in a position to safeguard the child – or justify interference in his life – in any effective way would be virtually non-existent.
  • Mr Twomey suggests that the very significant delay in making the PII application calls for an explanation and raises a serious issue as to the merits of the claim. Mr Twomey suggested that when I considered the claim there were a number of issues which may be relevant but which might only be probed in CLOSED session. He cited eight matters and asked a number of associated questions – all of them useful to me during the CLOSED session.
  • On behalf of the child’s guardian, Mr Parker suggests there are two points which undermine confidence in the SSHD’s evaluation. First, that the unwillingness to provide disclosure was a position arrived at long before the balancing exercise set out within the Certificate. There is a risk, accordingly, that the Certificate is simply an ex post facto justification of the SSHD’s position. Mr Parker’s second general point is that the premise for the balancing exercise is flawed in that the SSHD understands the local authority’s application is for a supervision order whereas the interim measure does not reflect the true nature of the proceedings.
  • Mr Parker makes four points in relation to the Wiley balancing exercise which, he submits, increase the balance in favour of disclosure – the insufficiency of available primary evidence, the inappropriateness of the Channel programme as an alternative method of safeguarding, the current unavailability of the Desistence and Disengagement Programme and the unreasonableness of requiring the mother to surrender her travel documents permanently.

 

1. Relevance

 

  • The first question, as to relevance, is simply satisfied. The SSHD proceeds on the assumption that the material is relevant and, in principle, disclosable as the result of the 4 October 2016 orders for disclosure. That is clearly right.

 

2. Would disclosure damage the public interest?

 

  • The second issue is confronted within the Certificate in this way. The SSHD identifies that the Government’s approach to PII requires her to focus specifically on the damage that would be caused by the disclosure of the particular material in issue and to assert PII only if satisfied that disclosure of that material would bring about a real risk of real damage to an important public interest. The SSHD expresses herself satisfied that the material referred to in the sensitive schedule would cause serious harm as it includes information of one or more of eleven specified kinds.
  • Within her OPEN submissions, Ms Wheeler explained that the reasons include those relating to national security though it is not possible to be more specific in OPEN about the nature of the harm that would be caused by disclosure. The effect of the material engaging national security considerations was that disclosure would create a real and significant risk of damage to national security (§19 of the Certificate).
  • I have sound reasons for agreeing with the SSHD’s evaluation based upon materials provided to me in CLOSED.

 

3. The Wiley balance – factors for and against disclosure

 

  • The last part of the Wiley exercise involves balancing the factors in favour of and against disclosure. The SSHD when considering the impact of non-disclosure takes into account three specific points – the nature of the material, the open and available material and other powers to protect the child.
  • The SSHD considers the factors in favour of disclosure to fall into two categories. First, the strong public interest in ensuring that children are protected from the risk of harm and that the material of potential relevance should be available to parties to family court proceedings. And second, that in general legal proceedings should be conducted openly; open justice principles are in play and are an important factor in protecting the rights of individuals and maintaining public confidence in the justice system.
  • To my mind, the most significant, weighty and powerful of the factors militating against disclosure is that the material engages considerations of national security. The SSHD formed the view that disclosure would create a real and significant risk of damage to national security. I accord great respect to and share that assessment on the basis of the material made available to me in CLOSED session, namely Ms Wheeler’s CLOSED submissions and the Sensitive Schedule (or damage assessment).
  • The conclusion of the SSHD that national security considerations are engaged, a judgment formed on the basis of comprehensive materials made available to her, in Ms Wheeler’s submission, should properly be accorded great deference. As Lord Templeman observed in R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 @ 281, “As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence of national security or diplomatic secrets will be self-evident and preclude disclosure.

 

Other available evidence

 

  • Ms Wheeler urges me to consider the other factors put forward in favour of non-disclosure. Firstly, the existence of other available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied. Second, in the event that the threshold criteria could not be satisfied and thus a public law order was unavailable, there could be recourse to other safeguarding measures such as the ‘Channel Programme’ and a new Home Office initiative, the ‘Desistence and Disengagement Programme.’ Thirdly, steps could be taken to disrupt travel plans involving flight to a war zone by continued passport restrictions.
  • It is clear that the SSHD’s contention as to the availability (and sufficiency) of other evidence causes the local authority, in particular, very real anxiety. Unwittingly, I suspect that I have contributed to the problem by observations made in the December judgment which play into the argument that further disclosure from the Home Office was (or is) necessary: see §§ 35, 39 – 42.
  • At that stage, however, I had not been required to consider the Wiley balancing exercise, I was not privy to Ms Wheeler’s CLOSED submissions and I had not considered the Sensitive Schedule. The landscape now is very different and disclosure questions call for a modified response.
  • Ms Wheeler is right to draw my attention to the available evidence. It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews.
  • More detail of available evidence is set out within paragraphs 3 to 8 of Ms Wheeler’s submissions dated 14 March 2017. Furthermore, Ms Wheeler makes the valid point that the letter from HM Passport Office dated 3 August 2016 refusing the father’s application for a replacement passport is of significance. It can and should be taken into account, argues Ms Wheeler, as part of the evidential picture.
  • I agree with Ms Wheeler’s submission that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) is ‘evidence.’ The Home Secretary’s decision is amenable to judicial review but there has been no challenge.
  • I also agree with the suggestion that the denial of a replacement passport on the basis of the exercise of the Royal Prerogative would not be, of itself, sufficient to establish the threshold criteria. Clearly it is a factor of relevance which could be taken into account as part of the evidential picture though it is impossible to assess quite how much weight might be attached in advance of any hearing.

 

As I said earlier, these cases leave me uncomfortable. Yes, a flimsy and vague threshold could be constructed on the basis that the parents have been stopped at airports and questioned under the Terroism Act and that the Secretary of State has seen material such to persuade them to refuse to issue the father with a passport, but if the parents assert that these actions were wrong, mistaken or the result of some form of racial profiling without foundation in reality, how is an LA to prove likelihood of significant harm?

 

The Judge says something very important about the documents that have not been shared. In essence, they wouldn’t themselves establish threshold even if they could be seen and relied upon

Nature of the material – future progress of litigation

 

  • With the future of these proceedings in mind, it is appropriate that I should discuss a matter which arose during the course of CLOSED session. It seems highly unlikely that the material upon which the SSHD has formed her assessment leading to the application for PII would advance the local authority’s case to any significant degree. On any view, the material could not be provided to (and therefore 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 does not advance an understanding of the parental relationship or contact with or intentions towards the child.

 

 

The judgment and story rather fizzles out there. Perhaps there was an application to withdraw the proceedings, perhaps not. We may never know.

 

 

 

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Cloak and dagger threshold

 

The word Kafka-esque crops up a lot when you talk about the family Courts, but here’s one where it is actually apt. Whatever the evidence was against the parents, not only could they not see it, but the social worker wasn’t able to see it either. And nor was the Judge.

 

Re C a child 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3171.html

S015,  Counter Terrorism Command notified the Local Authority that a man who was a father of children was considered to be a significant risk of terrorism activities, radicalisation and possible flight to Syria (possibly with his children).  The Local Authority issued care proceedings.  To make this perfectly plain, if it had not been for the notification from S015, the Local Authority would not have issued care proceedings. They had no evidence, concerns or suspicions of their own. They were reacting to that notification from an organisation who they understood to have credible evidence for that belief.

 

 

"You can't TAKE Command. Command takes YOU"   Okay, so this is B6-13 not SO-15, but you get the idea

“You can’t TAKE Command. Command takes YOU” Okay, so this is B6-13 not SO-15, but you get the idea

This is what S015 told them

 

 

  • 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.

 

That’s sufficient to meet threshold – it is a good concluding paragraph to a threshold document on radicalisation.  The issue of course is that it works as a concluding paragraph, after the preceding paragraphs set out WHY those things are true and WHAT the evidence is to prove it.

 

However, SO15 didn’t provide that. And they didn’t provide it after the Court made an order for disclosure.   They applied to discharge the disclosure orders. At first they said that the order hadn’t been particular enough or that it was necessary to disclose anything at all.  That was a bold claim, given that the Judge who made the order was the one hearing that argument.

 

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

 

  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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

 

  • 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’.”
  • 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.
  • 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.

 

 

However, SO15, and the SSHD (Secretary of State for the Home Department, or the Home Secretary) had an ace up their sleeve. Counsel representing the SSHD made it clear that if the Court wanted to press ahead with an order for disclosure, the Home Secretary would sign a Public Interest Immunity certificate which would prevent the disclosure of any material.  There’s a process for the PII certificate to be reviewed by the Court, but none of the parties would see the basis on which it was asserted that disclosure would be against the national interest.

 

Rock, I’d like you to meet Hardplace, Hardplace, this is the Rock.  I’ll just stand between the both of you.

 

In a game of Rock Paper Scissors, the Rock wins every round

In a game of Rock Paper Scissors, the Rock wins every round

 

Obviously the family Court don’t want to trample on national security and of course security services don’t want to cough up in detail why they happen to be watching the father and what led them to do so and what they have found out about who he is talking to, because that could jeopardise all sorts of other important and sensitive and possibly life-threatening/life-saving operations.   And given that the family Courts have so far ended all of the radicalisation cases with the children remaining with the parents, one can see why SO15 don’t consider that it is worth taking those risks with sensitive information given the likely final resolution of any individual case.   (At present it rather seems as though you are better off  in care proceedings as a parent being in contact with ISIS members than letting your ten year old child shoot terrorists on Call of Duty, but that’s just my cynical jaded take on it)

On the other hand, there are children here and the Local Authority can’t obtain orders to protect them without having evidence to show why they need to be protected and the parents can’t refute the allegations about them without knowing what they are.

 

The Judge left the disclosure orders in place, indicating that when and if the Home Secretary issued a PII certificate, that would be the time for consideration of whether the reasons on the PII certificate outweighed the need for disclosure.  If there is no disclosure, presumably the application will have to be withdrawn, as the LA have no evidence that could prove threshold.

 

This was always going to be the difficult issue in radicalisation cases and whilst the President’s guidance works very hard to find a solution, I’m just not sure that there is one. If you are a Local Authority who receives that sort of tip-off, what the hell are you supposed to do with it?  If you issue, you’ll hit this road-block and the proceedings will be dropped, and if you don’t and something happens, the Daily Mail will be eating you alive.  It’s a complete hospital pass by the Security Services.

 

What’s the alternative? Amend the Children Act 1989 to allow SO15 to issue care proceedings of their own? Run a family Court equivalent of the Closed Material Procedure Courts that operate in alleged terrorism offences in the criminal Courts?  They are hugely controversial in crime  (and if you’re interested in more about them I recommend Ian Cobain’s book “The History Thieves”  where he describes the AB and CD case, with the jury being told that if they ever discussed any of the evidence in the case they could themselves be punished by two years imprisonment and the incredible stipulations on journalists whose notebooks were taken each day, were prohibited from writing notes outside the Courtroom after hearing the evidence and not being able to tell their readers any of the important details in the case)

 

I certainly can’t claim to have a solution, but it is an obvious problem.

 

 

 

Totally radical, dude

"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

The President has published guidance on radicalisation cases within the family Court, which you can find here:-

 

https://www.judiciary.gov.uk/wp-content/uploads/2015/10/pfd-guidance-radicalisation-cases.pdf

 

The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.

 

The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need 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 might compromise ongoing investigations, 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” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.

 

 

 

 

This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.

 

[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]

 

"Omar comin' ! "

“Omar comin’ ! “

 

This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.

 

Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?

 

It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]

 

The guidance continues

 

11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  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.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

 

I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

Is there truly such a thing as an ‘anonymous’ referral?

 

 A discussion of Re J (A Child:Disclosure) 2012

The case can be found here :-

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1204.html

 

 

This was an appeal arising from private law proceedings, but the principles are likely to apply (if not be even more apposite) to public law proceedings.

 

Effectively, within the time that private law proceedings were going on, an allegation of sexual misconduct was raised against the father.  The allegations were made to the Local Authority, who then alerted the mother that allegations of a serious kind, that they had some confidence in, had been made.

 

The referrer had requested anonymity.

 

(We go back here to D v NSPCC 1978 AC 171  which established that a principle called  Public Interest Immunity applied to information provided to a child protection agency – like NSPCC or Social Services,  and that there was a broad public interest in individuals being able to know that they could make those referrals in confidence.    In particular that they wouldn’t face threats, violence or harassment as a result of having made that referral.

 

There’s a larger public debate here, which can easily be understood if you switch the word ‘referral’ with ‘allegation’   – it’s appropriate for someone to be able to make a referral in confidence, but if you put yourself in the place of a parent who is the subject of an anonymous allegation, you would feel entirely differently)

 

 

As the father, understandably, was disputing that he had behaved in a sexually inappropriate way, and the issue was going to the heart of whether he was a risky person to have contact with his children, or a safe person, the Court had to have a finding of fact hearing to determine the allegations.

 

Given that the referrer, who wished to remain anonymous, had become known to the mother, the issue then became twofold :-

 

  1. Should her identity be formally revealed and the detail of the referral be made known by disclosing the documents
  2. At the finding of fact hearing, should the referrer attend Court and be available to be cross-examined?

 

 

The Judge at first instance, who was Mr Justice Peter Jackson  analysed the issue in this way :-

 

  1. a. The father denied sexually abusing anybody. He had not been informed of X’s identity and knew nothing of the substance of her allegations. He asserted that the mother had colluded with X to generate these allegations for the purpose of obstructing contact with his daughter. He argued that for the court not to insist on testing the allegations would be fundamentally unjust and the situation would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first and there must be a trial attended by X.

b. The mother described herself being torn between the need to protect A and the reluctance to add to the pressure on X. She supported disclosure if it is the only means by which A can be protected, but is concerned about the consequences for X if disclosure takes place.

c. X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court. She was acutely distressed by the effect of the proceedings on her already fragile state of health.

d. A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.

e. The local authority took a neutral stance, but assisted the court by presenting arguments for and against disclosure.

  1. In analysing the competing factors, the judge referred to the following articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘ECHR’) as being relevant:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  1. Having considered the decision of this court in A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757, the judge concluded that the fundamental objective of the balancing exercise is to strike a fair balance between the various rights and interests within the context of achieving a fair trial. In this context he held (at paragraph 29) the following ECHR articles were engaged so far as the court and the local authority as public bodies are concerned:
    • Article 6, entitling A and her parents to a fair hearing of X’s allegations;
    • Article 8, guaranteeing respect for the family life of A and her parents;
    • Article 8, guaranteeing respect for the private life of X; and
    • Article 3, prohibiting inhuman or degrading treatment of A and of X.
  1. Peter Jackson J concluded (paragraph 34) that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.
  1. Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

 

The Judge at first instance decided that balancing those competing interests meant that it was right, in the circumstances of this particular case, not to compel X to give evidence, or to disclose the information  (he approached it in that order, which becomes relevant later)

 

48. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:

1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.

2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

3) X’s identity and her allegations are inextricably intertwined.

4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

 

49. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian’s submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A’s welfare

The father’s case, again understandably was, that without having the opportunity to properly test the very grave allegations that had been made against him  (and not even knowing who it was he was alleged to have abused)  would make it impossible to conduct a finding of fact hearing, and even if the allegations were effectively set to one side with a decision that they couldn’t be proved, they would hang over him and inevitably colour any later decision about his contact.  

 

(The Judge seemed to be saying that X’s allegations wouldn’t be the subject of a finding of fact hearing, but that on its own did not mean that father’s contact would automatically revert to pre-allegation position. And a strand that emerged was that without the allegations being determined one way or another, was it reasonable for mother – who believed them – to be opposed to direct contact?)

 

The Court of Appeal considered the issue of the trial judge having seen the source material which was not disclosed to the parties , with the long and the short of it being that a Judge who saw such pertinent evidence and decided it was not to be disclosed was really in a position where he had to recuse himself from determining the matter, no matter how hard he would strive to put it out of his mind, ‘justice must not only be done, it must be seen to be done’ :-

 

 

  1. Having now had the benefit of looking at these potentially ambiguous passages with the assistance of counsel’s submissions, I am fully satisfied that the judge has no intention of relying directly upon the undisclosed material to support some form of finding on the issue of sexual abuse. His latter comment about the outcome not automatically leading to unsupervised contact would seem simply to be a sensible and proper judicial indication that all substantive welfare options remain open and that all he has dealt with thus far is the application for disclosure.
  1. Despite accepting that the judge’s indication is, within its own context, unremarkable, there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.
  1. Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.
  1. Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong

 

 

There is, as always with Lord Justice MacFarlane’s judgments, a helpful drawing together of the history of decisions on both Public Interest Immunity and balancing of competing Human Rights, and it would be a good starting point for any research on these issues.

 

 

The Court of Appeal then determined whether the Court at first instance had gone awry in balancing those matters, and specifically whether in determining that X was not going to give evidence and thus disclosure was of no purpose, that decision had been made the wrong way around (i.e that disclosure was a separate issue to X giving live evidence)

 

  1. Moving from legal principle to the circumstances of this case, whilst the judge’s characterisation of the probative value of X’s allegations as being unlikely to lead to a resolution of the issue that they raise may be correct on our present state of knowledge, that state of knowledge is based entirely on what X is reported to have said. Because of X’s stipulation that no person is to be told of her allegations, the local authority has not undertaken any investigation of them whatsoever. In so far as X may give a factual context which places X and the father together and within which the alleged abusive behaviour took place, it has not been possible to ask any of the adults who were then responsible for X’s care whether or not that factual context has validity. A’s mother knows only of the label attached to the alleged behaviour, she too may readily be able to validate or challenge what is said about the factual context and the father’s opportunity to interact abusively with X as X alleges. Plainly the father too will be able to give his own account of matters if disclosure takes place. I do not therefore accept Peter Jackson J’s assertion that ‘the nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources’; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence.
  1. For the reasons I have given, I conclude that the judge was in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge unfortunately allowed that conclusion to dominate his consideration of the disclosure question in a manner which is unsupported by authority. The judge was further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleges that the abusive behaviour took place

And then moved on to make the decision about disclosure :-

 

  1. In answer to the questions posed within structure established by Lord Mustill in Re D:

a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;

b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;

c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.

  1. For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

 

 

The Court of Appeal did make it plain during the judgment, that they were considering this on the basis of the individual case and the individual judgment, rather than attempting to pull out some general principles for all cases, and say so explicitly here:-

 

40         I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.

 

And of course, the key issue in this case is that the referrer X, was not someone who was saying  “I have seen father do such and such to a child” or “I believe father has done such and such to a child”  but that “when I was a child, this man did such and such to me”     (i.e that the referrer was not claiming to have witnessed abuse, but to have been a victim of it)

 

But the principle remains – in the light of this authority, and the ones cited within the judgment  (notably Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593)  )   http://www.bailii.org/uk/cases/UKHL/1995/17.html  

 

Can someone who makes a referral or allegation to a Local Authority, who wishes to remain anonymous, have confidence that they would remain so?

 

The reality is, that if the referral or allegation is relied upon – i.e that a party to the case seeks to convert that allegation into proven fact (as opposed to ‘it is true that an anonymous referrer said this, but the Court is not asked to determine that what was alleged is true’)   then it is hard to see a Court being persuaded that the parents article 6 rights to see the allegation and challenge it are outweighed by the interests of confidentiality to the anonymous referrer.

 

The deck was stacked pretty heavily in favour of the referrer here  –  she had been a ‘child victim’, there was psychological evidence about the consequences of disclosure being very detrimental to her, and still the material was disclosed.

 

There’s the possibility, perhaps long-distant, of a referrer who was told by the Local Authority when they rang up and asked if they could remain anonymous that they could, bringing a claim against the LA when their details were disclosed. 

 

It might well be the case that the only true way to make an anonymous referral is the obvious one – don’t give your name to anyone.  If you tell the person on the other end of the phone your real name, they might well have to cough it up at some point in the future.

 

[If it hasn’t been clear in the discussion above, I am very sympathetic to both sides of the debate – I think it is important that people are able to genuinely alert the right authorities to suspected child abuse without having to have fear of reprisals, but I can also see that where there is suspicion and doubt that such referrals are genuine and might instead be false malicious allegations, there’s a serious interest in the victim of such allegations being able to properly contest them.  

 

It is one of those difficult areas where the overarching public interest in cases generally might well be anonymity, but in any particular case the right thing is more likely to be transparency]