X, Y and Z (Disclosure to the Security Service) [2016] EWHC 2400 (Fam)

[2016] EWHC 2400 (Fam)Case No ZC15C00659
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, 2Strand, London, WC2A 2LLDate 06/10/2016
Before
THE HONOURABLE MR JUSTICE MACDONALD
Between
The Commissioner of Police of the MetropolisApplicantA Local AuthorityFirst RespondentXSecond RespondentYIntervenerZ (by his Children’s Guardian)Fourth Respondent
Mr David Evans QC and Mr Matthew Hill for ApplicantMr Ian Griffin and Ms Sarah Haworth for First RespondentMs Louise MacLynn for Second RespondentMr Frank Feehan QC and Ms Fareha Choudhury for Third RespondentMr Cyrus Larizadeh QC for Fourth RespondentHearing Hearing dates: 5 September 2016
Judgment ApprovedTHE HONOURABLE MR JUSTICE MACDONALDThis judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.Mr Justice MacDonald:
[1]On 8 July 2016 I handed down my reasons for deciding that the local authority should be given permission to disclose to the Metropolitan Police Service (hereafter the MPS) and the Crown Prosecution Service (hereafter the CPS) the statement of the mother dated 13 June 2016, lodged immediately prior to the commencement of the fact finding hearing in this matter, and for refusing to prevent the disclosure of my judgment of 21 June 2016, handed down following the conclusion of the fact finding hearing, to the MPS and the CPS pursuant to the terms of FPR 2010 Part 12 Chapter 7 and PD12G.[2]My order of 8 July 2016 providing for disclosure of the aforementioned information to the MPS and the CPS contained the following conditions concerning the handling by the MPS and CPS of the material disclosed to them: a) The information shall not be disclosed or discussed with any other person outside the MPS or CPS without further permission of this court; b) A copy of the order permitting disclosure of the information and setting out the conditions governing that disclosure shall be given to the MPS or CPS; c) The MPS or CPS shall require any individual within their organisation to whom copies of the information are shown or given to sign a written confirmation indicating that they have received a copy of the order and that they understand its terms and effect and provide the same to the local authority; d) The MPS or CPS must only use the information for the purposes of any criminal investigation and any charging decision; e) Nothing from the information shall be published, read into the public record or otherwise placed into the public domain that might lead to the identification of the mother, the maternal grandmother or the subject child without the further permission of the court; f) The MPS or CPS shall have liberty to apply to vary the terms of this order or discharge the same on 7 days’ notice to the parties to these proceedings (whether or not those proceedings are ongoing). g) Any application to vary or discharge this order shall be reserved to Mr Justice MacDonald if available. h) In the event that the care proceedings have concluded, on any application to vary or discharge this order the child should be separately represented through CAFCASS. i) A copy of this order shall be served on the MPS or CPS at the same time as the information set out in (a) is disclosed to them.[3]The MPS now seek permission to disclose the statement of the mother dated 13 June 2016 and a copy of my substantive judgment dated 21 June 2016 onwards to the Security Service (also known as MI5).[4]The MPS seek to disclose the information to the Security Service in order to inform their own investigation and not at the behest of the Security Service. In particular, the statement before the court from the investigating counter-terrorism officer in the MPS Counter-Terrorism Unit, SO15 makes clear that the request for onward disclosure is made in circumstances where the investigation being conducted by the MPS will benefit from ascertaining whether information contained in the statement of the mother and in the judgment of the court links into intelligence that may (or may not) be held by the Security Service, and from the joint analysis and further investigation of that information by the two agencies, in accordance with the statutory function of the Security Service to act in support of the activities of police forces and other law enforcement agencies in the prevention and detection of serious crime (Security Services Act 1989 s 2(4)) and well-established principles of interagency co-operation and information sharing.[5]Within this context (and in any event by longstanding convention) the Security Service makes clear through the statement from an officer of the Security Service (identified to the court by means of a cipher only) that it neither confirms nor denies an interest in the information that is the subject of this application and takes a neutral position in respect of the application advanced by the MPS. The Security Service is not a party to this application.[6]Notwithstanding this, in pursuing its application the MPS nonetheless seeks to legislate for the possibility that upon receipt of the material the Security Service may wish to disclose that material to third parties within the context of the joint analysis and further investigation of the information by the two domestic agencies and in discharging its own duties as set out in s 1(1) of the Security Services Act 1989, which are, inter alia, as follows:
“(1) The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.”
[7]No party now actively opposes the MPS being given permission to disclose the statement and the judgment to the Security Service (although I should make clear the mother does not give her consent). However, all parties to the care proceedings submit that the disclosure to the Security Service should take place subject to broadly the same conditions placed on the MPS and CPS as set out in Paragraph 2 above. By contrast, the MPS submits that it is not necessary, nor would it be appropriate to place any conditions on the disclosure of the information in question to the Security Service and it resists the imposition of any such conditions in the order for disclosure that it seeks.[8]In the circumstances, the court is asked to decide whether, when giving permission to the MPS to disclose to the Security Service information confidential to these family proceedings, conditions should be attached to that permission.[9]Whilst making clear, for reasons I have already dealt with, that it neither confirms nor denies that it is interested in the information that is the subject of this application and takes a neutral position in respect of the application advanced by the MPS, the Security Service has, at the request of the MPS, provided the court with a statement from an officer of the Service dealing in general terms with(a) the statutory framework under which the Security Service operates, and in particular how that framework affects the way in which information is handled and disseminated within and by the Security Service and(b) the culture, training and practices put in place within the Security Service to ensure the proper handling of confidential information.

BACKGROUND

[10]The background to this matter is set out in my judgments of 21 June and 8 July 2016. For the present purposes it is sufficient to record the following matters.[11]In this matter I continue to be concerned with, Z a child born in 2013 and now aged 3 years old. Z is the son of X (hereafter “the mother”) and D (hereafter “the father”). Z’s maternal grandmother is Y (hereafter “the maternal grandmother”) who is currently an intervener in these proceedings. The local authority applies for a care order in respect of Z by an application issued on 5 November 2015. Z’s interests are represented in these proceedings by his children’s guardian. The father does not appear and is not represented at this hearing.[12]On 14 June 2016 I commenced a finding of fact hearing in this matter. At the outset of that hearing the local authority sought findings in respect of two aspects of the history of this matter. Namely, the alleged deliberate poisoning and/or infection of Z and the alleged involvement of the father in Islamic extremism and terrorist related activity prior to, and after leaving the United Kingdom for Syria, together with the alleged intention of the mother to take Z to Syria.[13]Ahead of commencement of the finding of fact hearing the mother filed and served a further statement dated 13 June 2016 in which she made substantial admissions with respect to the findings sought by the local authority. Having considered those concessions, the documentary evidence filed in these proceedings and the submissions of leading and junior counsel, on 21 June 2016 I delivered a short judgment in which I made a series of findings against the mother.[14]In short, I found that the mother had caused Z to become ill on a number of occasions by administering a drug to him and by contaminating his intravenous cannula. I further found that the mother was in contact with the father to a far greater extent than she had admitted prior to the finding of fact hearing, that it is likely that the father is in Syria and is involved in terror related activity in that location, that the mother was aware that the father was so involved and that the father planned that the mother and Z would travel to Syria to join him and to live there.[15]On 21 and 30 June 2016 I heard an application for permission to disclose to the MPS the mother’s statement of 13 June 2013 and my judgment of 21 June 2016, the disclosure of the same being opposed by the mother. On 8 July 2016 I gave my reasons for deciding that the local authority should be given permission to disclose the mother’s statement to the MPS and the CPS, for refusing to restrain the disclosure of my judgment to the MPS and CPS and for attaching conditions to that disclosure. That disclosure took place subject to the conditions that I have already described. As I have recounted, the MPS now seek permission to disclose a copy of the statement of the mother dated 13 June 2016 and my substantive judgment dated 21 June 2016 onwards to the Security Service.

THE LAW

[16]Proceedings under the Children Act 1989 are to be held in private save where the FPR 2010 or any enactment provides to the contrary or where, subject to any enactment, the court otherwise directs (FPR 2010 r 27.10). Pursuant to the Administration of Justice Act 1960 s 12(1)(a)(ii) publication of information relating to proceedings before a court sitting in private (as this court does in these proceedings pursuant to FPR 2010 r 27.10) will be a contempt of court where the proceedings are brought under the Children Act 1989 (as these proceedings are).[17]Having considered the decision of the Court of Appeal in Re M (Disclosure: Children and Family Reporter) [2002] EWCA Civ 1199, [2003] Fam 26, [2002] 2 FLR 893, in Re B (A Child)(Disclosure) [2004] 2 FLR 142 Munby J (as he then was) held that (subject to the exception where the communication is to a professional acting in furtherance of the protection of children under what is now FPR 2010 r 12.73(1)(a)(viii)) there is “publication” for the purposes of s 12 of the Administration of Justice Act 1960 whenever the law of defamation would treat such communication as amounting to publication. Thus, most forms of dissemination, whether oral or written, will constitute a publication for the purposes of s 12 of the Administration of Justice Act 1960 (Re B (A Child)(Disclosure) at [68]-[73]).[18]Pursuant to the Administration of Justice Act 1960 s 12(4) publication will not be punishable as a contempt of court under s 12 where that publication is authorised by rules of court. As Baker J made clear in Re X and Y (Disclosure of Judgment to Police) [2014] EWHC 278 (Fam) at [16], the scheme of disclosure provided for by the FPR 2010 Part 12 Chapter 7 deals with three categories of communication of information relating to care proceedings for the purposes of the law relating to contempt of court, namely: i) Communications under r 12.73(1)(a), which communications may be made as a matter of right where the communication is to persons specified in r 12.73(1)(a); ii) Communications under r 12.73(1)(c) and PD12G paras 1 and 2, which communications may be made in accordance with the terms of the Practice Direction but are subject to the direction of the court, including in appropriate circumstances that the communication should not be made; iii) Communications under r 12.73(1)(b), which communications may only be made with the court’s permission.[19]The Security Service is not specified in FPR 2010 r 12.73(1)(a) as a ‘person’ to whom disclosure can be made as of right. Whilst pursuant to FPR 2010 r 12.73(1)(c) and FPR 2010 PD12G para 2.1 a party to care proceedings may (subject to the court’s power to restrain its disclosure) disclose to a Police officer the text or summary of the whole or part of a judgment for the purposes of a criminal investigation, and a person lawfully in receipt of information may communicate the text or summary of the whole or part of a judgment given in the proceedings to a member of the CPS to enable that service to discharge its functions under any enactment, the table set out in PD12G para 2.1 does not include provision for a copy of the judgment to be provided to the Security Service. Within this context, it is important to note that where the judgment of the court is disclosed to the Police and onwards to a member of the CPS pursuant to the provisions of FPR 2010 r 12.73(1)(c) and PD12G the person receiving the judgment is not entitled to disclose the material further without the further permission of the court. The table set out in PD12G para 2.1 likewise does not make provision for disclosure of statements filed in the proceedings to the Security Service.[20]Accordingly, the communication of information confidential to these proceedings now proposed by the MPS falls under the ambit of FPR 2010 r 12.73(1)(b) and the burden lies on MPS to demonstrate to the court that the communication to the Security Service should be permitted (Re X and Y (Disclosure of Judgment to Police) at [16]).[21]When deciding whether to permit the onward disclosure of documents, and if so under what terms, the court will consider the following factors, together with the observations in respect of those factors, set out in the case of Re C (A Minor)(Care Proceedings: Disclosure) [1997] Fam 76 sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725: i) The welfare interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor; ii) The welfare interests of other children generally; iii) The maintenance of confidentiality in children’s cases; iv) The importance of encouraging frankness in children’s cases. This is a very important factor and is likely to be of particular importance in a case where the Children Act 1989 s 98(2) applies; v) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice; vi) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the Police which is relevant to a criminal trial. In many cases this is likely to be an important factor; vii) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order; viii) The desirability of co-operation between various agencies concerned with the welfare of the children, including social services departments, the Police service, medical practitioners, health visitors, school, etc. This is particularly important in cases concerning children; ix) In a case in which s 98(2) applies, the terms of the section itself. Namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him or her in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression will also be relevant considerations; x) Any other material disclosure which has already taken place.[22]With respect to the Children Act 1989 s 98, as to the admissibility of statements of admission made in proceedings under the Children Act 1989 the Children Act 1989 s 98 provides as follows: 98 Self-incrimination. E+W(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from— (a) giving evidence on any matter; or (b) answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partnerof an offence.(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partnerin proceedings for an offence other than perjury.[23]As made clear in Re C (A Minor)(Care Proceedings: Disclosure) sub nom Re EC (Disclosure of Material), the underlying purpose of the Children Act 1989 s 98 is to encourage people to tell the truth in cases concerning children, and the incentive to do so is that any admission made in proceedings under the Children Act 1989 will not be admissible in a criminal trial. It is however important to note that, as also made clear in Re C (A Minor)(Care Proceedings: Disclosure) sub nom Re EC (Disclosure of Material), the protection provided by the Children Act 1998 s 98(2) is not absolute. In the circumstances, the Children Act 1989 s 98(2) does not guarantee the confidentiality of an admission made in family proceedings.[24]In conducting the balancing exercise to determine whether to permit disclosure of material the court must have in mind all relevant human rights and in particular those rights enshrined in Arts 6 and 8 of the ECHR (Lewisham London Borough Council v D (Local Authority: Disclosure of DNA Samples to the Police [2011] 1 FLR 895 and Re X and Y (Disclosure of Judgment to Police) at [20]).[25]In circumstances, where(a) the factors relevant to the balancing exercise which informs whether information should be disclosed and to whom and(b) the outcome of the exercise itself, may be different dependent on when in an evolving investigation or in ongoing criminal proceedings the application is made and by which agency or agencies disclosure is sought, the issue of disclosure may benefit from a staged approach whereby the court retains a degree of control over the material disclosed (Re X (Children) [2008] 1 FLR 589 and Re X and Y (Disclosure of Judgment to Police) at [57]).[26]Within this context, the decision for the Family Court on an application for disclosure or onward disclosure is not simply a binary one of ordering disclosure or refusing disclosure. The court may order disclosure but impose appropriate conditions on the disclosure of documents where such conditions are necessary to ensure fair balance between the rights engaged (Re X (Children) [2008] 1 FLR 589 at [38] and Re X and Y (Disclosure of Judgment to Police) at [21] and [38]). In Re X (Children) Munby J (as he then was) held as follows:
“[38] It has to be borne in mind that the choice for the court is not confined to either ordering or refusing to order disclosure. The court has power to impose appropriate conditions where that is necessary to hold the balance fairly and in a Convention-compliant manner. [39] Sometimes (as in Re Z (Children) (Disclosure: Criminal Proceedings)) it will be quite clear what document(s) need to be disclosed and there will be no need for the family court to impose any limitations or conditions upon their subsequent use. Sometimes there may be uncertainty as to precisely which documents should be disclosed. (After all, the person seeking disclosure, if not a party to the proceedings in the family court, may not know what documents there are which might appropriately be disclosed and the family court may have a less than perfect understanding of the other proceedings.) In such a case a ‘step by step' approach may be appropriate, the family court directing the disclosure of the documents which seem to be most immediately relevant but on the basis that the applicant can always make a supplementary application for the disclosure of further documents. Sometimes (as in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673) it may be appropriate – indeed essential, if rights protected by the Convention are not to be breached – to impose more or less stringent limitations or conditions upon the use of the documents. In particular, it may be appropriate for the family court to retain control over any further dissemination of the documents (or of the information contained in the documents) especially if there is a prospect of the documents (or the information) entering the public domain. Sometimes it may be appropriate to disclose only parts of certain documents or to disclose documents in an edited or redacted form.”
[27]Within the context of cases in which it is alleged that parents are planning or attempting to travel to parts of Syria controlled by the so-called Islamic State, that children have been or are at risk of being radicalised or that children have been or at are at risk of being involved in terrorist activities either in this country or abroad, on 8 October 2015 the President issued Guidance entitled Radicalisation Cases in the Family Courts. The Guidance highlights the following principles relevant to the issue of applications by statutory agencies for disclosure from family proceedings in cases of this nature: i) Whilst in proceedings where the interests of the individual child are paramount those interests cannot be eclipsed by the wider consideration of counter-terrorism policy or operations, and whilst it is no part of the court’s function to act as an investigator on the part of the prosecuting authorities, subject to these 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; ii) 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; iii) There is a 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; iv) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved should be recognised, as should the need for open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter-agency co-operation; v) There is a need to ensure that the Art 6 rights of all the parties are protected; vi) Consideration should be given to whether there is a need for a closed hearing or the use of a special advocate and the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.[28]Finally, as will be seen in due course, with respect to the maintenance of confidentiality in children’s cases Mr David Evans QC and Mr Matthew Hill submit on behalf of the MPS that the statutory and regulatory framework which governs the handling of information by the Security Service is sufficient to ensure the maintenance of confidentiality were the material in question to be disclosed by the MPS to the Security Service without conditions. In summary, Mr Evans QC and Mr Hill pray in aid the following provisions.[29]The functions of the Security Service are established by the Security Services Act 1989 s 1(1) as set out at Paragraph 6 above. The Security Services Act 1989 s 2(2)(a) provides, so far as is relevant for present purposes, as follows in respect of the purposes for which information can be received, retained and disclosed by the Security Service:
“2. The Director-General. (1) The operations of the Service shall continue to be under the control of a Director-General appointed by the Secretary of State. (2) The Director-General shall be responsible for the efficiency of the Service and it shall be his duty to ensure— (a) that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings; and (b) that the Service does not take any action to further the interests of any political party; and (c) that there are arrangements, agreed with the Director General of the National Crime Agency, for co-ordinating the activities of the Service in pursuance of section 1(4) of this Act with the activities of police forces, the National Crime Agency and other law enforcement agencies.” (a) that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings; and (b) that the Service does not take any action to further the interests of any political party; and (c) that there are arrangements, agreed with the Director General of the National Crime Agency, for co-ordinating the activities of the Service in pursuance of section 1(4) of this Act with the activities of police forces, the National Crime Agency and other law enforcement agencies.”
[30]Mr Evans and Mr Hill further submit that in circumstances where Security Service is a public authority for the purposes of the Human Rights Act 1998 s 6(1), it is required to act in a manner that is compatible with the Art 8 right to respect for private life of the mother, the maternal grandmother and the child. Further, whilst the Data Protection Act 1998 s 28 allows for an exemption from the data protection principles and the relevant statutory framework on the grounds of safeguarding national security, Mr Evans and Mr Hill rely on the fact that such an exemption requires a Minister of the Crown to provide a certificate in support, the issuing of which may be the subject of an appeal.[31]Mr Evans and Mr Hill further rely on the fact that the work of the Security Service is subject to scrutiny by the Secretary of State for the Home Department, the Intelligence and Security Committee of Parliament, as constituted by the Justice and Security Act 2013 s 1(1), and by the Intelligence Services Commissioner and the Investigatory Powers Tribunal, as constituted by the Regulation of Investigatory Powers Act 2000, the latter body providing a forum in which claims involving the Security Service can be heard, including claims for alleged breach of the rights of individuals under the ECHR.[32]Within this context, Mr Evans and Mr Hill further pray in aid the evidence of the Security Service Officer that, within the context of the statutory framework, secrecy and the appropriate handling of information is the central credo of the Security Service, that standards are maintained by high quality record keeping and information management systems, the provision of training, guidance and legal advice, the use of restricted access auditing, protective monitoring and ‘the need to know’ principle and that a failure to meet the high standards set by the Service will result in disciplinary proceedings and, potentially, criminal prosecution under the provisions of the Official Secrets Act 1989 s 1 (see for example R v Shayler [2003] 1 AC 247).[33]Finally, in respect of the governance of dissemination of the information outside the confines of the Security Service, Mr Evans and Mr Hill rely on the following passage in the statement of the Security Service officer: “In appropriate cases it may be necessary for the protection of national security (or for the discharge of MI5’s other functions or the purposes of criminal proceedings) for MI5 to disclose information to persons outside the organisation. This is subject to strict controls and various policies and arrangements depending on the type of information, the nature of the disclosure and the recipient audience. Consideration is given in all cases to the lawful basis for any disclosure, the necessity and proportionality of disclosure, the risk of that information being further disseminated or acted upon without prior consent, and the risk that the information will, directly or indirectly, enter the public domain”.[34]Within the foregoing statutory and regulatory context, in support of their submission that the statutory and regulatory framework which governs the handling of information by the Security Service is sufficient to ensure the maintenance of confidentiality were the material in question to be disclosed by the MPS to the Security Service without conditions, Mr Evans and Mr Hill seek to rely on the observation of Burton J in Liberty (The National Council of Civil Liberties) v Government Communications Headquarters and Others [2015] 1 Cr. App. R. 24 at [156]-[157] in which the Tribunal considered at length whether certain assumed intelligence-sharing activities of the respondent intelligence services, including the Security Service, violated arts 8 and 10 of the ECHR:
“[156] In the course of this judgment we have made detailed reference to the various statutory and other safeguards and oversights which govern the receipt of intercepted material in the UK. Save in one possible (and to date hypothetical respect) we have ruled that the current regime…when conducted in accordance with the requirements we have considered, is lawful and human rights compliant… [157] The legislation in force and the safeguards to which we have referred are intended to recognise the importance of, and the need to maintain, an acceptable balance between (a) the interests of the state to acquire information for the vital purpose of national security and the protection of its citizens from terrorism and other serious crime; and (b) the vital interests of all citizens to know that the law makes effective provision to safeguard their rights to privacy and freedom of expression, together with appropriate and effective limits upon what the state does with that information.”
[35]Within the context of the issue of the disclosure of information confidential to family proceedings to the Security Service, Mr Evans and Mr Hill further rely on the observation of Thorpe LJ in Re H (Care Proceedings: Disclosure) [2009] 2 FLR 1531 at [21] that:
“The disclosure is to responsible professionals who will use the material for the purpose for which it is shared, namely criminal investigation and possible prosecution. The criminal justice system has its own responsibility and powers to protect the vulnerable.”
THE SUBMISSIONS The MPS

THE SUBMISSIONS

[36]As prefaced in the foregoing paragraphs, the application for permission to disclose made by the MPS not being actively opposed in principle, on behalf of the MPS Mr Evans QC and Mr Hill argue that, in light of the statutory and regulatory framework within which the Security Service is required to operate by Parliament, the fact that disclosure will be made to responsible professionals with their own legal obligations and internal procedures in respect of onward disclosure and dissemination, and having regard to the unique nature and particular function of an intelligence agency whose credo of secrecy is central to its effectiveness, the court need not and should not attach conditions to that disclosure by the MPS to the Security Service, the court being able to be confident that such disclosure would be handled appropriately and responsibly by the latter. Within this context, Mr Evans and Mr Hill note, as an aside, that the local authority is not subject to conditions above and beyond the statutory and regulatory framework applicable to it when it is trusted with confidential information such as medical records during the course of public law proceedings.[37]As to the balance between the competing rights in this matter, having regard to the decision of the Investigatory Powers Tribunal in Liberty (The National Council of Civil Liberties) v Government Communications Headquarters and Others, Mr Evans and Mr Hill submit that the legislation in force in respect of, and the safeguards imposing limits on what information can be obtained and disclosed by the Security Service has been acknowledged as recognising and ensuring an acceptable balance between the interests of the state to acquire information so as to protect its citizens from terrorism and serious crime, and the interests of citizens to know that the law made effective provision to place limits on what the state did with that information and to safeguard their rights to respect for private life.[38]Mr Evans and Mr Hill submit further that to place restrictions on the Security Service by imposing conditions on the disclosure provided to it by the MPS would have the effect of inhibiting or limiting the “operational agility” of the Security Service, impeding its ability to quickly take investigative, operational and other steps that the Security Service may consider necessary to discharge its statutory functions under the Security Services Act 1989. Within the context of the operational impact of the imposition of conditions, Mr Evans and Mr Hill submit that it would in particular not be appropriate to impose a condition (imposed on the MPS) requiring the provision, even by way of the use of ciphers, of a list of persons within the Security Service who have been provided with the disclosure. Finally in this regard, Mr Evans and Mr Hill remind the court of Paragraph 7 of the President’s Guidance which emphasises “the need to ensure that the operational requirements of the Police and other agencies are not inadvertently compromised or inhibited…because of any order made by the court”. Mr Evans and Mr Hill submit that, having regard to the nature of the task of the Security Service, the risk of the material being published by reason of there being no conditions attached to onward disclosure is outweighed by the desirability of the Security Service being able to operate freely and without the need to return to court.[39]As to dissemination outside the confines of the Security Service, Mr Evans and Mr Hill point to the evidence of the Security Service Officer that such dissemination is “subject to strict controls and various policies and arrangements depending on the type of information, the nature of the disclosure and the recipient audience”. Further, Mr Evans and Mr Hill argue that such dissemination would not constitute “publication” for the purposes of the Administration Act 1960. In this respect, Mr Evans makes a distinction between ‘publication’ that results in information becoming known to members of the public, for example through the press, and information being provided to another organisation, for example, a foreign intelligence agency.[40]Whilst it is plain that there had been some discussion between the parties regarding the provision by the MPS to the Security Service of discrete pieces of information from the documents in issue that would not necessarily need to be the subject of further conditions, Mr Evans and Mr Hill make clear that the MPS wishes to give the entirety of the statement of the mother and the judgment to the Security Service. The justification for this is said by Mr Evans and Mr Hill to be that it is the Security Service who are best placed to determine what information contained in those documents may link into intelligence that may (or may not) be held by the Security Service.[41]Finally, Mr Evans and Mr Hill raise concerns of a practical nature centred on the procedural consequences of imposing conditions on the disclosure of the material by the MPS to the Security Service.[42]Were the court to impose a condition that the Security Service must not, for example, disclose the material outside the Service without applying for permission of the court, Mr Evans and Mr Hill argue that this would immediately create the need for a new special procedure to deal with such an application. Within this context, they argue that in circumstances(a) where the principle of neither confirming nor denying an interest or involvement (‘the NCND principle’) means that the Security Service would not be in a position to give notice of such an application and(b) where the likely destination of any further disclosure would inevitably be secret, any procedure for granting permission would have to be a closed procedure which could not involve those parties whom the information concerned, immediately creating issues with regard to the Art 6 rights of those parties. Further, Mr Evans and Mr Hill question how any court dealing with such an application could do anything other than permit onward disclosure when faced with uncontested evidence that the Security Service consider that the same is required in the interests of national security.

The Respondents

[43]The parties to the care proceedings speak with one voice in response to the application by the MPS in respect of the question of conditions being attached to any order permitting the MPS to disclose the statement and the judgment to the Security Service. At the election of the respondents to this application, Mr Feehan QC and Ms Choudhury on behalf of the Maternal Grandmother went first with their submissions in response to those advanced on behalf of the MPS.[44]Mr Feehan and Ms Choudhury submit that the court must begin with the principle that family proceedings are confidential and that the FPR 2010 Part 12 Chapter 7 provides a carefully thought out legal framework for determining whether and, if so, what inroads should be made into that cardinal principle in a given case, which cardinal principle applies to the documents in issue in this application.[45]Within this context, Mr Feehan and Ms Choudhury remind the court that the principle of confidentiality serves an important purpose in family proceedings. In particular, it encourages frankness from those who are the subject of proceedings, absent which encouragement to frankness a court exercising a quasi-inquisitorial jurisdiction will find it much more difficult to fulfil its crucial function of safeguarding and promoting the welfare of children pursuant to the principles set out in the Children Act 1989. As such, any derogation from the principle of confidentiality in a given case must, argue Mr Feehan and Ms Choudhury, continue to be carefully monitored by the court if parties are to have the confidence to be frank and open with the court. The fact that the agency receiving the disclosure in question is the Security Service should not, they say, detract from this proposition.[46]Allied to this submission, Mr Feehan and Ms Choudhury remind the court that this matter concerns a two-year-old child who remains the subject of care proceedings that are yet to be concluded and in which there is a possibility the court will determine that his future lies with permanent carers outside his family. Within this context, Mr Feehan and Ms Choudhury argue that the principle of confidentiality in family proceedings serves a further important purpose, namely preventing the wider publication of the reasons that the child is the subject of proceedings, which wider publication could result in prospective permanent carers being unwilling to consider the child, which outcome would be wholly antithetic to that child’s best interests. Mr Feehan and Ms Choudhury argue that this risk is particularly acute having regard to the circumstances of this case.[47]In response to the submissions made by Mr Evans and Mr Hill on behalf of the MPS concerning the statutory and regulatory framework governing the handling and dissemination of information by the Security Service, Mr Feehan and Ms Choudhury submit that a close examination of that framework cannot, in fact, give the court confidence that it constitutes, without more, sufficient protection for material disclosed to the Security Service that Parliament has decided should be confidential to these proceedings.[48]First say Mr Feehan and Ms Choudhury, the term “necessary” in s 2(2)(a) of the Security Act 1989, not being further defined in the statute, gives a very wide discretion to the Director-General when it comes to him or her regulating what information obtained by the Security Service is disclosed by it for the purposes specified by the Act. Within this context, Mr Feehan and Ms Choudhury submit that it is impossible to know what “necessary” means beyond that it is what the Director-General considers it to be. Whilst the reason for the breadth of the discretion created by s 2(2)(a) is perhaps obvious having regard to the function of an intelligence agency, Mr Feehan and Ms Choudhury submit that this nonetheless means that the court is simply not able to judge under what circumstances material confidential to these proceedings might be disseminated to persons outside the Security Service, for example to a foreign intelligence agency, and thus whether the provisions of s 2(2)(a) of the 1989 Act provide equivalent or better protection than that provided by the scheme that this court has a duty to apply pursuant to FPR 2010 Part 12 Chapter 7 and the principles set out in Re C (A Minor)(Care Proceedings: Disclosure) [1997] Fam 76 sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.[49]Second, Mr Feehan and Ms Choudhury submit that in any event s 2(2)(a) of the Security Services Act 1989 cannot provide the requisite degree of reassurance regarding the onward disclosure of material confidential to these family proceedings in circumstances where the Director-General is not required to take into account all those matters which this court must consider when deciding whether to disclose material confidential to these proceedings outside the confines of the proceedings. In addition, Mr Feehan and Ms Choudhury submit that, in the context of these continuing and evolving proceedings, when determining necessity for the purposes of s 2(2)(a) in relation to material confidential to these proceedings, the Director-General will not have available to him or her all the material relevant to the decision, such as the stage of the proceedings have reached and in particular the extent to which disclosure may impact on Z’s welfare at that point in time.[50]Third, Mr Feehan and Ms Choudhury submit that all of the protections provided by the statutory and regulatory framework governing the Security Service are, in contrast to the disclosure regime provided by the FPR 2010, are ex post facto in nature (save for the duty imposed on the Director-General by s 2(2)(a), which they submit provides insufficient protection for the reasons set out above). Thus, by the time the Intelligence Services Commissioner or the Investigatory Powers Tribunal (or indeed Secretary of State for the Home Department or the Intelligence and Security Committee of Parliament) become involved in respect of any error leading to a breach of confidentiality, Mr Feehan and Ms Choudhury submit the damage to the confidentiality of these proceedings, and the adverse consequences of that damage, will have already been done.[51]Mr Feehan and Ms Choudhury submit that the foregoing difficulties reach their nadir in the context of the very real possibility of dissemination of information confidential to these proceedings to persons outside the Security Service, and potentially outside the jurisdiction of the court, without further examination by the court. Various examples of this kind of disclosure were canvassed during the course of submissions, including disclosure to foreign intelligence agencies. However, the root of Mr Feehan and Ms Choudhury’s submission is that in circumstances where onward disclosure is likely to be to persons or organisations who are not amenable to the jurisdiction of the court, this would result in material confidential to these family proceedings moving beyond the jurisdiction of, and the control and oversight of the court that Parliament has made responsible for regulating the disclosure of such confidential material. This they submit increases even further the need for a condition that the Security Service seek the permission of the court before onward disclosure outside the confines of the Service (if any) takes place.[52]Within the foregoing context, and given what they contend is the gravity of consequences of wider publication of the material in question, including publication outside the jurisdiction, Mr Feehan and Ms Choudhury submit that this is a seminal case for the staged approach articulated by Munby J (as he then was) in Re X (Children) at [38] and [39] involving the imposition of conditions regulating any onward disclosure by the Security Service.[53]As to the consequential need to develop a procedure for ensuring that the Security Service could seek permission for onward disclosure, Mr Feehan and Ms Choudhury submit that this is eminently achievable using already established procedural practice. Mr Feehan and Ms Choudhury contend that it is perfectly possible to craft a fair procedure for permission applications, commencing, if necessary, with a without notice application to a High Court judge, at which without notice hearing the procedural questions of notice and, in appropriate cases, the use of a closed procedure would be considered having regard to the Art 6 rights engaged, before the court made its substantive decision on onward disclosure.[54]Mr Ian Griffin and Ms Sarah Harworth on behalf of the Local Authority, Ms Louise MacLynn on behalf of the mother and Mr Cyrus Larizadeh QC on behalf of the child essentially adopted the submissions of Mr Feehan and Ms Choudhury’s, although Ms MacLynn could not support a tentative proposal advanced by Mr Feehan and Ms Choudhury during the course of submissions that a list of facts from the relevant documents be compiled for disclosure which would not require conditions to be attached. This point was not further pursued in circumstances where Mr Evans and Mr Hill made clear that their application was for disclosure of the entirety of the statement and the judgment.

DISCUSSION

[55]In this matter, I am wholly satisfied that the MPS should have permission to disclose to the Security Service a copy of the mother’s statement dated 13 June 2016 and a copy of my judgment dated 21 June 2016, to which course of action no party actively objects. I have however decided that a permission condition should be attached to that disclosure insofar as any onward disclosure outside the confines of the Security Service is concerned. Whilst I am satisfied that it is not necessary to impose conditions regarding the handling of documents by the Security Service internally beyond a condition that the order of this court be brought to the attention of the Director-General of the Security Service, I am satisfied that it is appropriate to impose a condition that the Security Service must apply for permission from the court if it intends to disclose the information outside the confines of the Service. I deal below with the mechanism for making any application for permission. My reason for so deciding is as follows.[56]I have borne in mind that this application is advanced by the MPS for permission to disclose the information to the Security Service in order to inform the investigation being undertaken by the MPS. The Security Service has not requested the information that is the subject of this application and, having regard to the purpose for which the MPS seek permission, namely to ascertain whether information contained in the statement of the mother and in the judgment of the court links into intelligence that may (or may not) be held by the Security Service, it is possible that the issue of disclosure outside the confines of the Security Service will not arise. The MPS nonetheless request that no conditions be attached to the disclosure it seeks to make to the Security Service and advances detailed reasons why the court can be confident it is not necessary to do so, supported by evidence from an officer of the Security Service. Accordingly, whilst the agency upon which any conditions imposed will act is not before the court, the point must nonetheless be addressed.[57]It is important to recognise and acknowledge the very clear tension that exists between maintaining the confidentiality of family proceedings in order to secure the advantages that such confidentiality confers and the strong public interest in ensuring the effective operation of police and intelligence agencies engaged in counter-terrorism. The strong public interest in the prosecution of serious crime and the punishment of offenders includes the public interest in identifying those who have been guilty of grave offences under the anti-terrorism legislation. This public interest argues heavily in favour of the court permitting the MPS to make available to the Security Service information which may permit the latter to assist the former in a criminal investigation. At the same time, the court must ensure it gives effect to laws passed by Parliament aimed at guaranteeing the fundamental rights of the parties to these proceedings, the maintenance and protection of which rights the work of the police and intelligence agencies in a liberal democracy is designed to achieve. In each case where disclosure is sought, the tension created between these competing principles must be balanced fairly and in a Convention-compliant manner by reference to the factors set out in Re C (A Minor)(Care Proceedings: Disclosure) sub nom Re EC (Disclosure of Material). It is that balancing exercise to which I now turn.[58]It is important when considering applications of this nature that the court have proper regard to the importance of maintaining confidentiality in cases concerning children, particularly during the currency of proceedings. Whilst the landscape in respect of the confidentiality of family proceedings has changed considerably since the decision in Re C (A Minor)(Care Proceedings: Disclosure) sub nom Re EC (Disclosure of Material) twenty years ago, the clear rational for maintaining confidentiality remains in terms of ensuring that publication of information which would be antithetic to the welfare of the child or prejudicial to the forensic process before the family court does not take place and in terms of encouraging those who come before the family courts to be frank with a view to achieving the best possible outcome for the child. Parliament has decided that the information that is the subject of the application before the court should, subject to certain exceptions provided by the rules of court, be confidential to the proceedings. Parliament has further decided that it is the court who should determine whether the exceptions provided by the rules of court should be deployed in a given case.[59]Within the context of this statutory framework, in a given case the court may be obliged either to refuse to order disclosure or, if disclosure is ordered, to maintain a degree of control over the manner in which confidential information disclosed is handled by those to whom it is disclosed with a view to balancing the competing rights involved. With respect to the latter, when making orders for disclosure the court can, where it considers it necessary, control how the disclosure is managed using ancillary orders to ensure that disclosure takes place in a manner that is necessary to achieve the ends for which disclosure is given whilst maintaining fidelity to the principle of confidentiality in family proceedings. Whilst, as in this case, an order permitting disclosure may be merited it may also be the case that conditions will need to be attached to that disclosure in order to achieve the proper balance between the competing principles and rights engaged by the application (Re X (Children) [2008] 1 FLR 589 at [38] and [39]).[60]Within this context, it is important to note that an order permitting disclosure or onward disclosure need not necessarily equate to dispensing completely, or even substantially, with the confidentiality of the proceedings. The rules and practice guidance governing the confidentiality of family proceedings have been constructed to enable co-operation with investigating authorities whilst ensuring that there is not indiscriminate sharing of information outside the confines of the agencies in question.[61]The onward disclosure of the information in question to the Security Service has the potential to impact on Z’s welfare both positively and negatively. The proper investigation and prosecution of alleged criminal conduct will be to the benefit of Z. Specifically, the identification and prosecution of criminal conduct by one or both the parents will assist in formulating more informed safeguarding of Z. Further, a criminal investigation is not only aimed at securing a criminal charge and conviction but also at identifying innocence. An investigation that results in the exoneration of one or both of his parents from criminal liability will likewise be to Z’s benefit. The exchange of information between the MPS and the Security Service increases the chance that an investigation will be brought to a successful conclusion one way or another.[62]Further, whilst the mother has no other children, I am also satisfied that onward disclosure that ensures that a fully informed criminal investigation can be undertaken is in the welfare interests of children more generally. It is plainly in the interest of children generally that suspected terrorist activity is investigated and, where necessary, protective measures taken and criminal sanctions deployed.[63]All these factors clearly argue for permission to be given to the MPS to disclose the material in question to the Security Service. Nonetheless, such disclosure is not without risk to Z’s welfare.[64]Having regard to the decision of Munby J (as he then was) in Re B (A Child)(Disclosure) at [68]-[73], I am not able to accept the submission of Mr Evans and Mr Hill that onward disclosure by the Security Service outside the confines of the Service would not constitute ‘publication’ for the purposes of the Administration of Justice Act 1960 s 12. Further, and in any event, the wider the dissemination outside the confines of the Security Service of the material confidential to these proceedings to persons or organisations beyond the reach of the court’s jurisdiction, the greater the risk in my judgment of that material reaching the wider public domain.[65]Whilst I am satisfied that as long as the information remains in the custody of the Security Service the risk of the information entering the wider public domain is negligible, for reasons I examine further below that risk will in my judgment increase markedly if the Security Service elected to disclose the information outside the confines of the Service and the rigorous internal safeguards it deploys. The consequences of this increased risk are particularly acute in the context of the fact that these proceedings remain ongoing and have yet to reach a decision on Z’s long term welfare. Should this court ultimately determine that Z cannot return to the care of his family, it is not difficult to see the adverse impact on home finding for Z of publicity surrounding the detailed circumstances of this case ahead of a social worker having the opportunity to discuss Z’s case with prospective carers in a balanced and considered manner. This would plainly be antithetic to his best interests.[66]In reaching my decision I have also taken into account the importance of encouraging frankness in children’s cases. As was observed in Re C (A Minor)(Care Proceedings: Disclosure) sub nom Re EC (Disclosure of Material), thisis a very important factor and is of particular importance in a case where the Children Act 1989 s 98(2) applies, as it does it this case. Whilst in this case I am satisfied that this factor does not militate against disclosure by the MPS to the Security Service per se,I am also satisfied that it supports the imposition of some conditions on that disclosure.[67]The importance of encouraging frankness is of particular moment in cases involving allegations of radicalisation or involvement in terrorism in circumstances where such activity tends, by its nature and practice, to be harder than other forms of harm to children for agencies concerned with child protection, including the courts, to identify and address. Whilst the need to encourage frankness is somewhat reduced in this casein circumstances where the mother has already made frank admissions which have informed the fact finding process, more widely it is important that parents and family members involved in family proceedings can have confidence that, whilst the court may decide it is in the public interest to disclose the material outside the confines of the proceedings, the court will maintain a degree over control over how that material is handled by those to whom it is disclosed. To paraphrase the words of Burton J in Liberty (The National Council of Civil Liberties) v Government Communications Headquarters and Others,it is in the interests of all citizens involved in family proceedings to know that the law makes effective provision to safeguard the confidentiality of information provided in family proceedings.[68]Within this context, I accept that giving permission to the MPS to disclose material to the Security Service in this case without imposing any further conditions on onward disclosure to third parties not bound by the strictures on handling information applied by the Service, or even to agencies outside the jurisdiction of the court, does risk reducing the likelihood that other parents in a similar position to the mother will be willing to speak frankly to the court about what they have done, with the consequence of making these already difficult cases harder still.[69]In this case the public interest in the proper administration of justice, which includes the public interest in the efficient detection and prosecution of serious criminal acts, requires that the court ensure that it does not make orders that unduly hamper the MPS in discharging its obligation to investigate serious crime, including enabling the MPS to share information with the Security Service in order to inform its own investigation. Having regard to the reason the MPS gives for seeking permission to share the information in question with the Security Service, I am satisfied that to refuse such permission would act to compromise the investigation being conducted by the MPS.[70]However, once again, this does not mean that the court should simply sanction such onward disclosure without condition. In each case the court will consider whether the disclosure it is satisfied should be made requires conditions to be attached in order to maintain a proper balance between the various rights and interests engaged having regard to the particular circumstances of the case. In this case, within the context of the public interest in the proper administration of public justice, the submissions advance by the MPS for not attaching conditions to the onward disclosure are based primarily on operational expediency, the argument being that such conditions will reduce the “operational agility” of the Security Service.[71]The principle that the court should ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited because of any order made by the court expressly recognises that orders for disclosure, or conditions attached thereto can have the effect of reducing or compromising operational effectiveness. Where there is clear evidence that this is, or risks being the case then the court can tailor its approach to take account of such difficulties. However, in circumstances where what is in issue is the disclosure of confidential, and in some cases highly sensitive, material, the court will require evidence concerning the operational impact of refusing disclosure or imposing conditions that goes beyond mere inconvenience. The mere fact that an agency will be required to return to court to obtain permission for onward disclosure is unlikely to be sufficient, particularly in circumstances where the court is equipped to consider applications for permission urgently in appropriate circumstances, including outside normal court hours. In this case, the evidence of the impact on the Security Service of disclosing conditions on onward disclosure does not go beyond the bare assertion that it will impact on “operational agility”. Further, and within this context, I note that Security Service acknowledges expressly in its statement of evidence that the Service is well used to operating subject to conditions prescribed by way of court order.[72]The importance of co-operation between agencies and the need for the family justice system to work together with those agencies in the criminal justice system to achieve the ends of justice in both systems also drives my conclusion that the MPS should be given permission to disclose the information in question to the Security Service. It would be inimical to the overall interests of justice and public safety for the MPS to be restrained by the Family Court from disclosing the material to the Security Service when the Security Service may, as a result of that disclosure, be able to assist the MPS in its investigation.[73]It is however, important to remember that the need to ensure co-operation between the Family Court, the police and other agencies operates within the context of the former continuing to be subject to the statutory principle of the confidentiality of its proceedings. The President’s Guidance recognises that interagency co-operation between the Family Court and other agencies operation is based on mutual respect, making clear that:
“The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved should be recognised, as should the need for open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter-agency co-operation”
. Within this context, in same way court should respect the operational demands of the MPS and the Security Service, it is incumbent upon those agencies to respect the statutory obligations of the Family Court, one of which is the maintenance of the confidentiality of its proceedings as an aid to the proper discharge of its functions.[74]The alleged offences which are the subject of investigation by the MPS in this case are offences under the anti-terrorism legislation. Such alleged offences are inevitably serious and the consequences of not detecting them and bringing offenders to justice are potentially grave and the subject of legitimate public concern. I am further satisfied that that the material in question is relevant to the alleged offences being investigated. Within this context, whilst the Respondent’s posited the idea of only certain factual matters extracted from the statement of the mother and the judgment of the court being disclosed to the Security Service, I accept the submission of Mr Evans and Mr Hill that it is important that the Security Service be able to draw its own conclusions about whether the material disclosed by the MPS links into intelligence held by the Security Service (if any).[75]I have borne closely in mind that this is a case to which the Children Act 1989 s 98(2) applies. In this case, I have already decided by my judgment of 8 July 2016 that MPS should have this information in order to inform its investigation into possible criminal offences committed by the mother and by others notwithstanding the fact that s 98(2) applies in this case. The onward disclosure now sought by the MPS to the Security Service is designed to further that same investigation. I have nonetheless continued to pay careful regard to the fact that the mother was in these proceedings not excused from answering incriminating questions on the basis that any statement of admission would not be admissible against her in criminal proceedings. I have also borne in mind that the protection provided by s 98(2) is not absolute. If the court accedes to the applications for disclosure, the mother may, as a result of further enquiries made by the police, be required to answer further questions in interview regarding her admissions, the admissibility of which interview will be a matter for the trial judge in the criminal proceedings.[76]With respect to material disclosure that has already taken place, I have had regard(a) to the fact that I have already directed material disclosure to the MPS and(b) to the fact that the mother has herself already disclosed the entirety of the contents of her statement to a paternal relative in breach of the rules of the court and notwithstanding the express warning given to her by the court at the end of the finding of fact hearing not to do so. Against this, it is correct to observe that the disclosure that has taken place to date has been to identified individuals whose identity is known to the court and over whom the court can exercise its jurisdiction by way of, in in relation to the MPS, the conditions on onward disclosure set out in the order of 8 July 2016 and, in relation to the paternal relative, by way of undertakings that relative has agreed to give to the court not to disclose the information without further order of the court.[77]Finally, I have borne in mind the relevant human rights engaged in this case. Both the mother and Z benefit from the Art 8 right to respect for their private life. Any interference in that right, which interference will include the disclosure to others of confidential information concerning them, must be necessary and proportionate by reference to the terms of Art 8(2). Art 8(2) expressly recognises that an interference in the Art 8 right to respect for private life may be necessary and proportionate in the interest of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others. It is noteworthy that the detection and prevention of terrorism is important in securing each of the goals articulated by Art 8(2). It is further of note that by ss 1(2) and 1(3) of the Security Service Act 1989, the function of the Security Service is also closely aligned to securing these goals. Finally, the need for any interference in the Art 8 right to respect for private life to be necessary and proportionate once again highlights the fact that the decision on an application for disclosure is not simply a binary one and that, whilst permitting disclosure, the court may also impose conditions on disclosure in order to render proportionate disclosure that would, absent such conditions, constitute a disproportionate interference in the Art 8 right to respect for private life.[78]I recognise the importance to both the mother, the maternal grandmother and Z of their Art 8 right to respect for private life. However, having regard to the particular circumstances of this case, I am satisfied in this case that it is necessary to interfere with that right in the interest of national security, public safety, for the prevention of disorder or crime and for the protection of rights and freedoms of others. I am likewise satisfied that the interference constituted by onward disclosure by the MPS to the Security Service is proportionate in the circumstances.[79]I am not however satisfied, having regard to the statutory principle of the confidentiality of these proceedings, the obligation imposed by Parliament on the court to govern the disclosure of material confidential to the proceedings, the unknown ambit of disclosure outside the confines of the Security Service, the unknown nature of the recipients, the fact that the recipients of the disclosure may be outside the jurisdiction of the court and the unknown manner in which the information so disclosed would be used, that it is necessary or proportionate to simply sanction onward disclosure by the Security Service outside the confines of the Service without condition.[80]Balancing all these factors, I am wholly satisfied that the MPS should have permission to disclose to the Security Service the information that is the subject of this application. I am not however, satisfied that the disclosure to the Security Service should take place without a permission condition being imposed on the ability of the Security Service to disclose that material outside the confines of the Service.[81]Disclosure by the MPS for a specified purpose to the Security Service, an identified agency subject to the jurisdiction of this court, is wholly different in both nature and extent to disclosure by the Security Service to an unidentified third party recipient, possibly outside the jurisdiction of the court, for an unspecified purpose. The factors to be considered by the court in determining whether to permit the former are likely to be materially, and possibly wholly different to those to be considered by the court in determining whether to permit the latter. In short, a decision in respect of the former does not inform a decision in respect of the latter.[82]Within this context, and in circumstances where I am satisfied that disclosure of information confidential to these proceedings outside confines of the Security Service(a) risks wider publicity that will be antithetic to Z’s welfare,(b) risks having a chilling effect on the willingness of other parents to be fully frank with the court and(c) would not, without further examination by the court as to the proposed ambit of disclosure, the nature of the proposed recipients, whether the proposed recipients are outside the jurisdiction of the court and the manner in which the information disclosed would be used, constitute a proportionate interference in the Art 8 right to respect for private life of the respondents to these proceedings, I am satisfied that this is a proper case in which to continue the staged approach to permitting disclosure of information confidential to family proceedings.[83]I am not satisfied that the need for “operational agility” changes this conclusion in circumstances where that submission is not further particularised and, more importantly, the Security Service concedes that it is well used to operating subject to conditions imposed by the courts and where the court is in a position to deal with any request for onward disclosure as a matter of urgency, including outside normal court hours. Further, whilst Mr Evans and Mr Hill submit that the difficulties identified in respect of disclosure to third parties outside the confines of the Security Service can and will be avoided by virtue of the statutory and regulatory framework governing the Security Service, I regret that I am unable to accept that submission in its entirety.[84]The evidence before the court gives me no reason to doubt the rigor with which the Security Service approaches the task of handling information internally. I accept that the Security Service is subject to strict statutory and regulatory regimes in this respect. Having regard to the legal framework and the evidence provided by the Security Service, I am content that, beyond a condition that a copy of my order be brought to the attention of the Director-General, no conditions need be imposed on disclosure to the Security Service relating to the internal handling of the information. The difficulty however, comes when one considers the possibility of dissemination of the information outside the confines of the Security Service.[85]First, whilst the submission of Mr Evans and Mr Hill regarding the test of ‘necessity’ in s 2(2)(a) of the Security Services Act 1989 is superficially attractive, I accept the submission of Mr Feehan and Ms Choudhury that the court, in fact, has before it no indication of what “necessary” might mean in the context of the treatment of the information that is the subject of this application. In particular, there is no indication of the factors which inform the criterion of necessity in relation to disclosure of that material outside the confines of the Security Service. In the circumstances, beyond the broad criterion of necessity, the court has, in fact, no real indication of the extent to which the factors that would inform a decision by the Security Service to disclose material confidential to these proceedings to a further and unidentified recipient for an unspecified purpose compare to those that this court must apply. Given the function of the security service as defined in s 1(1) of the Security Services Act 1989, the test of necessity in s 2(2)(a) is likely to be significantly wider than the test for disclosure adopted by the Family Court, and applied on the basis of very different priorities.[86]Second, and in any event, whilst it is possible to articulate the protections and safeguards applied by the Security Service when handling confidential information internally and, although to a very limited extent in the circumstances rehearsed in the previous paragraph, the broad nature of the test for disclosure of information by the Security Service, once the information is disclosed outside the confines of the Security Service those safeguards will cease to apply and the subsequent handling of the information will depend on the safeguards applied by those to whom the information has been disclosed, if any. Within this context, I observe once again that such disclosure would, without the attachment of any further conditions, be to recipients unknown to, and possibly outside the jurisdiction of the court and for purposes unknown to the court. Further, the legal, and certainly the practical reality is that court is unlikely to be able to impose enforceable conditions as to the handling of information on, for example, a foreign intelligence agency to whom the information is disclosed. In my judgment these matters speak strongly to the need for this court, charged as it is by Parliament with the responsibility for regulating disclosure of information confidential to family proceedings, to require the Security Service to seek the permission of the court before it discloses the information in this manner in order that the court can examine the request for disclosure against the criteria it is obliged to apply to all such requests.[87]Third, and within this context, I accept the submission of Mr Feehan and Ms Choudhury that, save for the duty imposed on the Director-General by s 2(2)(a), all of the protections provided by the statutory and regulatory framework are ex post facto in nature. Once again, in my judgment this speaks to the need for this court to require the Security Service to seek the permission of the court before it discloses the information outside the confines of the Service.[88]Having listened carefully to the helpful submissions of leading and junior counsel and having considered the evidence before the court, I am accordingly satisfied that it is necessary for the court to impose a condition on the disclosure sought by the MPS that the Security Service apply for permission should it wish to further disclose that information outside the confines of the Service. There will also be a condition that the order I have made will be brought to the attention of the Director-General of the Security Service.[89]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. Within this context, I note that The President’s Guidance recognises that in cases in the family court concerning the issue of radicalisation the court may need to consider the use of closed hearings or special advocates. The Guidance further recognises the need to ensure that the Art 6 rights of all the parties are protected.[90]In seeking to ensure that the Art 6 rights that are engaged are properly protected, as well as fidelity to the common law principles of fairness and natural justice, I further note that both the domestic and European Courts have recognised that proceedings in relation to the intelligence services inevitably raise special problems and might not be capable of being dealt with in the same way as other claims (see Regina (A) v Director of Establishments of the Security Service [2010] 2 AC 1). In the case of R v Shayler [2003] 1 AC 247 Lord Bingham noted as follows in this respect:
“The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100–103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45–47; Esbester v United Kingdom (1993) 18 EHRR CD 72, 74; Brind v United Kingdom (1994) 18 EHRR CD 76, 83–84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual's Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.”
[91]There is in my judgment no need to set up any new or elaborate procedure to account for the particular difficulties raised by any permission application that may be made by the Security Service. Rather, it is a question of adapting the existing, well established procedure for such permission applications. The key adaptations will be the need to recognise the greater likelihood that the initial hearing will need to be without notice to the parties to the proceedings (although it will remain incumbent on the Security Service in each instance to justify a without notice application by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412) and the possible use thereafter of some species of closed procedure involving the deployment of special advocates when determining the application for permission.[92]As to the applicable principles for determining whether a closed procedure should be adopted (if requested), the Justice and Security Act 2013 s 6(11) provides for the making of a declaration in any proceedings (other than proceedings in a criminal cause or matter) before the High Court that the proceedings are proceedings in which a closed material application may be made to the court. No such provision is made however, in respect of proceedings in the Family Court. Further, the rules of court which govern the determination of an application for such a declaration, and any subsequent closed material application are those set out in the CPR Part 82. By CPR r 2.1(2), CPR Part 82 does not apply to family proceedings and CPR Part 82 is not otherwise incorporated into the FPR 2010.[93]In the circumstances, whilst it would appear possible to transfer family proceedings to the High Court in order to secure for the court a statutory jurisdiction to consider an application for a declaration pursuant to the Justice and Security Act 2013 s 6 that those family proceedings are proceedings in which a closed material application may be made, absent the incorporation of CPR Part 82 into the FPR 2010 there are at present no procedural rules for determining that application or any subsequent closed material application in the context of family proceedings.[94]Historically however, and notwithstanding it being seemingly well-established that the fundamental principle that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party can only be qualified or overridden by statute, and even then only expressly and not by implication (see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 132 and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at [45]), it is clear that special advocates have been utilised on a limited number of occasions in family proceedings to deal with issues of disclosure of sensitive material (see Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 at [31]-[34] and [112] and BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974 at [13] to [48]). In A Chief Constable v YK and Others [2011] 1 FLR 1493 at [112], whilst declining the use of special advocates in that case, Sir Nicholas Wall observed that “there will be undoubtedly be circumstances in family proceedings in which they are appropriate”. The President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016 contemplates the use of closed hearings and special advocates in family proceedings.[95]In the circumstances (and whilst there may remain an argument to be had as to whether the use of some species of closed procedure in the Family Court is permissible absent express statutory provision for the same, or in family proceedings in the High Court pursuant to the Justice and Security Act 2013 absent any rules of procedure governing the same having been promulgated) at any initial hearing of an application by the Security Service for permission to disclose the court will need to consider, inter alia, the following matters: i) Whether the application for permission is properly made without notice in the first instance. The application should contain brief reasons for seeking to pursue the application initially without notice to the parties by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412; ii) Whether the Security Service invite the court to determine the application for permission on the basis of a closed procedure utilising special advocates; iii) Whether the application is appropriate to be dealt with by means of the use of a closed procedure utilising special advocates having regard to the guidance set out in Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, A Chief Constable v YK and Others [2011] 1 FLR 1493 BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974, the President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016. iv) Any further directions for the hearing having regard to the court’s decision in respect of the foregoing matters, again having regard the guidance in the authorities and Practice Guidance enumerated at (iii).

CONCLUSION

[96]In conclusion, I give permission to the MPS to disclose to the Security Service a copy of the mother’s statement dated 13 June 2016 and a copy of my judgment dated 21 June 2016. The following conditions will be attached to that disclosure: i) The information shall not be disclosed or discussed with any other person outside the MPS, the CPS or the Security Service without further permission of this court; ii) A copy of the order permitting disclosure of the information and setting out the conditions governing that disclosure shall be provided to the Director-General of the Security Service.[97]That is my judgment.

Cited in 1 later judgment