Closed material procedures in children proceedings ~ David Burrows, JORDAN’S FAMILY LAW, 17 OCT 2016.
In X, Y and Z (Disclosure to the Security Service)  EWHC 2400 (Fam), McDonald J considered briefly at the end of his judgment (paras  to ) the possibility of a third party seeking confidential information in children proceedings by a closed material procedure (‘CMP’. See furtherEvidence in family proceedings by David Burrows (2016, Family Law), Ch 20). The applicant might be, as X, Y and Z, the security services, although application was made there by the police on their behalf. However, it could be the police or other enquirer with a legitimate concern in an aspect of the otherwise confidential proceedings (for a short discussion of X, Y and Z, see Disclosure and confidentiality: a tale of two cases in last week’s Family Law News).
Of CMP and children proceedings, McDonald J said:
‘ My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court …’
Any CMP in family proceedings will be very rare indeed. Typically they may arise in children proceedings where radicalisation is suspected, but also in female genital mutilation or forced marriage protection order applications (under FPR 2010 Part 11).
Closed material procedures: general principles
A closed material procedure was defined by Lord Neuberger in Bank Mellat v Her Majesty’s Treasury (No 1)  UKSC 38,  AC 700 (Bank Mellat (No 1)) as:
‘ … A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (ie a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties).’
In Al Rawi and Others v The Security Service & Ors  UKSC 34,  AC 531 the Supreme Court held that the common law would not permit a CMP. Such procedures can only be set up by express statutory provision (the Bank Mellat case proceeded under Counter-Terrorism Act 2008). European Convention 1950 and the right to a fair trial does not prevent closed material procedures, provided strict conditions are met. Lord Neuberger summarised those conditions inBank Mellat (No 1) as follows:
‘ …Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it.’
In Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948, a vulnerable young adult witness confronted by an argument that her confidentiality should be breached so she could give evidence against a father in children proceedings. Lady Hale, confronted with a suggestion that closed material could be considered in that case, answered:
‘ It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening)  UKSC 34,  1 AC 531 … It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful …’
Secondly, she went on to say, there are difficulties inherent in the procedures themselves:
‘ … The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a ‘gist’ of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedures, therefore, it would not meet the minimum requirements of a fair hearing in this case.’
Closed material procedures in civil proceedings
So where does that leave any proposal that there might be for CMPs in children (or perhaps other family) proceedings? The position is not entirely clear. Al Rawi provides the starting point for consideration of any such procedure in civil proceedings generally. The case arose from a preliminary issue in a damages claim raised in proceedings where the claimants alleged that the security services had been complicit in the detention and ill-treatment of them by foreign authorities at various locations including at Guantanamo Bay. The pleaded causes of action included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998. The state filed an open defence admitting certain uncontroversial facts, but also a closed defence which referred to material they wanted the court only to consider. They want to deny access to the claimants to this material (ie they wanted it to be closed).
The Security Service, the defendants, said that the disclosure question could not be dealt with on ordinary public interest immunity (PII) grounds. They said there was so much material: this might take 3 years just to decide in respect of which material PII should be claimed. The judge said a CMP was permitted. The Court of Appeal disagreed, and the Supreme Court disallowed the Security Service’s appeal from that decision (with Lord Clarke dissenting).
The Supreme Court held – with a little doubt in the case of children proceedings (see below) – that in civil proceedings CMP should not be permitted in the absence of statutory provision.
Closed material procedures have been used to protect national security (eg cases cited so far in this article) and in proceedings before the Information Commissioner where sensitive information is required to be protected (Browning v The Information Commissioner & Anor  EWCA Civ 1050,  1 WLR 3848). In a very narrow range of exceptional circumstances they may be ordered in children proceedings (and, eg, subject to the conditions referred to by Lord Neuberger in Bank Mellat (No 1) at  (above)). The starting point must always be to protect a party’s right to an open trial with all material available to him or her which will be considered by the court, and subject to rules of natural justice.
Use of closed material procedures
Lord Dyson, who gave the main judgment for those who dismissed the appeal in Al Rawi, summarised the open trial principles. First, he said, trials must be in public:
‘ There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy  1 KB 256, at p 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd  AC 440, at pp 449H-450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening)  QB 218, paras 38-39, per Lord Judge CJ.’
Certain basic principles of natural justice must be observed by the courts. He cites particular aspects of this, including:
‘… A party has a right to know the case against him and the evidence on which it is based. [and] he is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance …
 … The parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: “Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.”‘
Lord Dyson was concerned to emphasise these points – none of them ‘controversial’, he thought – because a CMP, unlike PII, diverged from open justice and natural justice principles. He centred Parliament’s response to this on the prevention from terrorism legislation so far made (eg Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008). Thus, a CMP must be distinguished from PII. With CMP the judge and certain parties (and perhaps special advocates for the parties kept out of the material) will see the sensitive material; but the excluded parties themselves will not. By contrast, in the case of PII only the party who has the documents has access to their information, which is denied to other parties and to the court. The court therefore decides the case with only a part of the relevant evidence.
It is not in question that proceedings in relation to children are one of the exceptions to the open justice principle (see, eg, Scott & Anor v Scott  UKHL 2,  AC 417; Administration of Justice Act 1960 s 12(1)). Hearings will almost invariably be in private, even though an anonymised version of the judgement may be published. CMP go much further than privacy. Lord Dyson again (citing Lord Bingham):
‘ It is one thing to say that the open justice principle may be abrogated if justice cannot otherwise be achieved. As Lord Bingham of Cornhill said in R v Davis  UKHL 36,  1 AC 1128 at para 28, the rights of a litigating party are the same whether a trial is conducted in camera or in open court and whether or not the course of the proceedings may be reported in the media. It is quite a different matter to say that the court may sanction a departure from the natural justice principle (including the right to be present at and participate in the whole or part of a trial). Scott v Scott is no authority for such a proposition.’
So, the issues at the heart of the appeal were:
‘ … How can such a step ever satisfy the requirements of justice? And if the court does have the power to deny a litigant this fundamental common law right, in what circumstances is it appropriate to exercise it? These are the questions that lie at the heart of this appeal.’
For Lord Dyson his conclusion, and his dismissal of the Government appeal (with varying degrees of enthusiasm all of the eight Supreme Court justices dismissed the appeal, save for Lord Clarke), was to refer back to in R v Davis  UKHL 36,  1 AC 1128 and to hold:
‘ I return to the questions that lie at the heart of this appeal. In my view, the analogy with Davis is compelling. As I have said, the fact that Davis was a criminal case is not material. The issues considered were of application to trials generally. It decided that, subject to certain exceptions and statutory qualifications, the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.’
Exceptions to rule refusing closed material procedure: children proceedings
Lord Dyson dealt with exceptions to his normal rule as to disallowance of CMP save by statute. In agreement with the minority view of Lord Clarke, Lord Dyson concluded:
‘ … there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice. Thus as Baroness Hale of Richmond said in Secretary of State for the Home Department v MB  UKHL 46,  1 AC 440 at para 58:
“If….the whole object of the proceedings is to protect and promote the best interests of a child, there may be exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the object of the exercise.”
Wardship proceedings are an obvious example of such a case: see In re K (Infants)  AC 201, per Lord Devlin at p 241A. Cases involving children raise different considerations from those which arise in ordinary civil litigation. That is because the interests of children are paramount. It follows that where the interests of the child are served, so too are the interests of justice.’
In Re K (Infants)  AC 201, the House of Lords considered whether, in wardship proceedings, they were entitled to deny to a mother access to a medical report prepared for the Official Solicitor. They held that in his/her discretion a judge was entitled to deny access to information, in the interests of a child. Lord Devlin started from ‘the ordinary principles of a judicial inquiry’ (per Upjohn LJ in the Court of Appeal):
‘They include [said Lord Devlin] the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those.’
Lord Devlin continued (at 240 to 241):
‘This is the essence of the matter. Where the judge sits as an arbiter between two parties, he need consider only what they put before him. If one or other omits something material and suffers from the omission, he must blame himself and not the judge. Where the judge sits purely as an arbiter and relies on the parties for his information, the parties have a correlative right that he should act only on information which they have had the opportunity of testing. Where the judge is not sitting purely, or even primarily, as an arbiter but is charged with the paramount duty of protecting the interests of one outside the conflict, a rule that is designed for just arbitrament cannot in all circumstances prevail.’
Where the interests of a child requires it, the position remains as it was in 1965: that the court can restrict disclosure to a party. A form of closed material procedure can operate. But how far?
Closed material procedures and a child’s welfare
Lord Mance, with whom Lady Hale agreed, made the point that once the principle of exceptions – which to a restricted degree he accepted – then it could not realistically be said that the court lacked jurisdiction.
‘ … once it is accepted, as Lord Dyson does (para 63), that “there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice”, for example wardship and other cases where the interests of children are paramount, that to my mind also makes it difficult to suggest that the court lacks jurisdiction in a strict sense to vary the basic principles of open and natural justice mentioned in para 107 above.’
Jurisdiction, he said, is one thing. Exercise of it is quite another. ‘ … Principles as important as open and natural justice ought to be regarded as sacrosanct, as long as they themselves do not lead to a denial of justice.’
Generally the courts should only permit closed material procedures where Parliament sanctions it – as with Justice and Security Act 2013. Otherwise in civil proceedings such procedures will only very rarely be justified, and those circumstances may include children proceedings.
Justice and Security Act 2013: analogy in children proceedings
Justice and Security Act 2013 (JSA 2013) has nothing to do with family law; but the procedures under it are considered here, to the extent that they may be treated as analogous to proceedings in children proceedings. In X, Y and Z, McDonald J made reference to JSA 2013, s 6, and CPR 1998, Part 82 which provides a procedure to closed material under JSA 2013. If application is made in family proceedings Part 82 by analogy could be used in family courts (as explained fully in Evidence in family proceedings (above)). The exceptions from the right of a person to a fair trial in open court under European Convention 1950 Art 6 is as follows:
‘(1) … the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’
JSA 2013 deals with national security. Public order and national security and ‘the interests of juveniles [(ie the welfare of children)] or the protection of the private life of the parties’ are bracketed in Art 6(1) as justifying exclusion of public and press. There seems to be no reason in underlying principle why similar criteria, at least in terms of evidence and procedure, should not be applied, in the very limited circumstances where it may be demanded, in children proceedings as in proceedings which concern national security.