The Chief Constable of West Yorkshire Police v FP & Anor
[2024] EWFC 130
SK (Father) v RO (Mother)
14 November 2023
[2023] EWHC 2896 (Fam)
High Court
A dad wants to see his son, but his ex-wife has serious accusations against him. Some information can't be shown to the dad to protect everyone's safety. A lawyer (special advocate) will help the dad, and the police will pay for them, up to a certain amount.
Key Facts
- •Private law family case concerning a 6-year-old boy, XX.
- •Father (SK) applied for a Child Arrangements Order seeking contact with XX.
- •Mother (RO) made serious allegations of domestic abuse against the Father, including physical assault and threats.
- •Cafcass recommended a fact-finding hearing and no interim contact.
- •Mother alleges risk of honour-based violence and withheld information from the Father.
- •Legal Aid Agency rejected application for exceptional funding for a Special Advocate (SA).
- •Special Advocates Support Office (SASO) indicated reluctance to appoint an SA without resolved funding.
- •West Midlands Police (WMP) offered to pay 50% of SA costs (£15,000).
Legal Principles
Fair trial rights under Article 6 ECHR must be balanced against the protection of the Mother and child under Articles 2 and 3 ECHR.
European Convention on Human Rights
A party must know the case against them and have the opportunity to respond (subject to caveats, including limited disclosure where necessary to balance competing ECHR rights).
Al Rawi v Security Service [2012] 1 AC 351; Re B (Disclosure to Other Parties) [2001] 2 FLR 1017; R (Chief Constable of West Midlands Police) ex p Wiley [1995] 1 AC 274
In determining applications for non-disclosure by the Police, the court should follow a process involving full disclosure to the court, disclosure of non-PII material to open parties, evaluation of PII claims, and consideration of a Special Advocate.
Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048
Appointment of a SA should be viewed as a final option.
Re T and subsequent caselaw
Closed Material Procedure (CMP) and SA use are permissible in family proceedings, either under inherent jurisdiction or the Justice and Security Act 2013, although procedural rules in family cases differ from those in civil cases.
Justice and Security Act 2013; Re X, Y and Z (Disclosure to the Security Service); Re R (Closed Material: Procedure: Special Advocates: Funding) [2017] EWHC 1793 (Fam); President’s Practice Guidance (Family Courts: Radicalisation Cases) [2017] 1 WLR 4452
If an SA is necessary, the court should determine who pays; the Attorney General should not bear these costs.
President’s Guidance: The Role of the Attorney-General in Appointing Advocates to the Court of Special Advocates in Family Cases (March 2015)
In cases involving CMP, the Police Force holding sensitive material should fund the SA, unless other material is held by other parties.
Re R (Cobb J)
Outcomes
A Special Advocate will be appointed to represent the Father.
To ensure the fairness of the proceedings given the closed material and the Father's inability to challenge it otherwise.
West Midlands Police will pay the SA's costs, capped at £15,000.
Balancing the need for a fair trial for the Father, the financial constraints, and the fact that the Police do not hold all of the sensitive material.