Family Law

Re C and the necessity for non-party disclosure

The case of Re C (A Child) [2016] EWHC 3171 (Fam) (case heading: London Borough of Tower Hamlets v M and F and Others), Pauffley J raises a number of issues over where the welfare of a child may be treated as in conflict with the needs of national security (as asserted by SO15: the Counter Terrorism Command, a Special Operations branch within London’s Metropolitan Police); and the extent to which the Secretary of State for the Home Department (SSHD) should disclose information, as a third party, to the parties in care proceedings. It hints at a procedure for closed material procedure (CMP) and refers to possibilities of an application for public interest immunity (PII) for the material in question.

In Re C care proceedings were started by the local authority as a result of information provided by SO15, including that on information from the passport office, they believed the father of a child held ‘an Islamist extremist mind-set’. The local authority needed evidence to support their application: the onus of proving the care application was on them. They obtained a non-party disclosure order from Pauffley J, without notice to the Home Department (the reason for this was said ‘due to a need to progress the case’ (para [9])). Pauffley J explained the court’s request that SO15 provide information as follows:

Public interest immunity and closed material procedures

The application before the court was to discharge that order. SSHD told the court that if the order was retained it might apply for PII for the material (para [17]). It is perhaps worth recording here, that if PII is ordered by the court, no-one sees the material (save for the party with it, if they are a party: the Home Department was not in this case); whereas if a CMP is ordered (if the court has power to do so: whether a court has inherent jurisdiction to do this was questioned in Al Rawi (below)) the excluded parties do not see the material, but at least the court, other parties and the special advocates do.

The claim for a CMP is explained, on analogy with Justice and Security Act 2013 (JSA 2013) and Civil Procedure Rules 1998 Part 82, in Evidence in family proceedings by David Burrows (Family Law, 2016) Ch 20. The balance between a claim for PII or an application for CMP was explained by Pauffley J in relation to the Home department decision-making as follows:


This emphasises the importance of full disclosure as between parties and the court (and see, in relation to CMP, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531), which is precluded by PII and any CMP.

Procedure for third party disclosure and PII

FPR 2010, r 21.2 (orders for disclosure against a person not a party) does not get many outings in family proceedings (Family Law online gives only one reference, namely P V P (Financial Remedies: Disclosure) [2012] EWHC 1733 (Fam); though when that case went to the Court of Appeal as Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, [2013] 1 FLR 1095 r 21.2 is also referred to). The rule enables the court – where statute permits – to order disclosure against a non-party (r 21.2(1)), such as the police, health departments etc. An application can be made without notice (r 21.2(2)(a)) but, in all cases, must be supported by evidence (r 21.2(2)(b)); or, presumably, plead the lack of evidence (as in Re C (above)).

The rule under review here is r 21.2(3) is: ‘(3) The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs.’ This stresses the discretionary nature of the jurisdiction. In A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673, Munby J explained (especially at para [60]) the limited powers of even the Family Division to make orders against non-parties. Pauffley J emphasised the term ‘necessary’ which in most contexts might be thought to limit the ambit of the principle; but here, as seen by Pauffley J, depends on the view of the judge as to the need for information from non-parties. Rule 21.2(3) is derived from CPR 1998, r 31.17(3).

The meaning of this rule – stressing, like Munby J above, that disclosure is the exception, rather than the rule – was explained in Rowe & Ors v Fryers & Anor [2003] EWCA Civ 655, [2003] 1 WLR 1952 (where the appeal against non-party disclosure was dismissed):


In Re C it is not stated under what statute Pauffley J proceeds.

Rule 21.2 goes on to require that the court ‘specify the documents or the classes of documents’ to be disclosed (r 21.2(4)(a)). It enables the court, in terms similar to CPR 1998 rr 31.17 and 31.19, to require a party to specify what documents are not in their control (r 21.2(4) and (5)). Disclosure could take place at a particular time and place (r 21.2(5(b); and see r 24.2(2) for documents and a witness summons). A non-party cannot be compelled to disclose a document which is covered by privilege (r 21.2(6); eg self-incrimination privilege) or, perhaps, by confidentiality.

Home Department opposition to disclosure

In submissions made on behalf of SSHD there were three main arguments put forward for discharge of Pauffley J’s without notice order:

1. That the local authority had not, said SSHD, complied with the President’s Guidance on Radicalisation cases in the family courts of 8 October 2015 (https://www.judiciary.gov.uk/wp-content/uploads/2015/10/pfd-guidance-radicalisation-cases.pdf) especially paras 10-12.
2. That the court had not complied with FPR 2010, r 21.2(3) on assessment of whether SO15 information was ‘necessary’.
3. That a family courts judge should not revisit the expert assessment of the decision-maker in the passport office. This could be done in the Administrative Court on public law principles.

(1)  Radicalisation Guidance

The Radicalisation Guidance paras 10-12 stress the need for co-operation between police and local authority (as does Children Act 2004 s 11 and Working Together (2015)). It refers to the quote from Hayden J (cited by Pauffley J at para [34]) in London Borough of Tower Hamlets v M and Others [2015] EWHC 869 (Fam), [2015] 2 FLR 1431, Hayden J (at para [18(iv)]) in which he said:


On this first objection to disclosure Pauffley J suggested that the SSHD had mounted a ‘circular argument of the most bewildering kind’ (para [23]). How could the local authority specify the information it wanted when the SSHD’s failure to disclose made it impossible to know what information they held (para [25])? She rejected the SSHD submission.

(2) Disclosure order’s failure to comply with rules or guidance 

Counsel for SSHD based her submissions in this central passage on FPR 2010, r 22.1(3) (set out above) and on the Radicalisation Guidance at para 7(e), which reads (in the passage cited by the judge):


Pauffley J’s reply to this was to reject that she had applied the wrong approach to the disclosure request. She stressed that judge’s do not order disclosure unless it is needed; and therefor an order which says this ‘is a statement of necessity, nothing less’ (para [29]). This slightly begs the question – was the order necessary? – but in a child welfare case perhaps it is sufficient. It is not the criterion for the case management decision as to whether to permit expert evidence of welfare reports as is well-known from Children and Families Act 2014, s 13. Pauffley J touches on that definition of ‘necessary’ but moves on, swiftly (para [29]).

(3) Passport office decision

The judge said she had no wish to re-visit the passport office decision. However the parents and child have a right to affair trial. The SSHD material might – it was impossible to tell, yet – assist the local authority in presenting their case. It might then assist the court in deciding the case:

Necessity and a fair trial

Non-party disclosure must be necessary (r 21.2(3)). It is the exception not the rule (see r 21.3(3) and the similar wording explained in Rowe & Ors v Fryers & Anor (above)). The welfare of children whose interests come first (H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338) may dictate the way any balance as between may fall as between a fair trial and national security.

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