Police Disclosure to the Family Court and the Use of Special Advocates: Uncharted Waters

05 FEB 2010

LUCY THEIS QC and JOANNA YOULL, Barristers, Field Court Chambers, Gray's Inn

It is common practice in public law children proceedings, where there have been, are or are likely to be, criminal proceedings involving one of the parties to invoke the Police Family Disclosure Protocol and subsequently seek a direction against the police for disclosure of information in its possession to the court. The process can often be protracted and it is the experience of many practitioners that the police are often reluctant to be forthcoming with information when an investigation is ongoing. In Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam), [2010] 1 FLR (forthcoming, but see comment by Professor Douglas in [2010] Fam Law 19), Mr Justice McFarlane addressed the unusual situation of the Metropolitan Police Service (MPS) voluntarily involving itself in wardship proceedings with information that it did not want disseminated to the parties. This proved to be uncharted waters and led to the use of special advocates for what is believed to be the first time in a family court.

There are in essence two ways the court can approach the issue of public interest immunity (PII). Traditionally, the procedure has been adopted (more often in the criminal courts) whereby the court has reviewed the material sought to be withheld in private with the assistance of the party or interested person seeking to withhold the material from disclosure. The judge then considers the material and rules on first whether the material is relevant and secondly in the event that it is relevant, on the balance of interest in favour of disclosure. Thereafter, disclosure is made where appropriate and the matters are kept under review by the judge in the course of the substantive proceedings. In the special advocate procedure the 'closed material', ie that material that has been withheld from disclosure to the party can be seen, tested in cross examination and submissions made upon by the special advocates and where necessary can be ruled upon in a 'closed judgment'.

To read the rest of this article, see March [2010] Family Law journal.

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