High Court Balances Rights in Family Case with Serious Safeguarding Concerns: Who Bears Costs of Special Advocate under Closed Material Procedure?

Citation: [2023] EWHC 2896 (Fam)
Judgment on

Introduction

In SK (Father) v RO (Mother) [2023] EWHC 2896 (Fam), the High Court of Justice grapples with balancing the competing rights of the parties in a private law family case involving serious safeguarding concerns. The judgment tackles the appointment of a Special Advocate (SA) under a Closed Material Procedure (CMP) and the thorny issue of who should bear the costs of such an appointment. This article breaks down the key topics discussed in the case and the legal principles applied by Mrs Justice Lieven.

Key Facts

SK and RO, parents of a young boy, XX, have divorced, with RO citing serious domestic abuse allegations against SK. In SK’s application for a Child Arrangements Order, a disagreement arose regarding the sharing of sensitive information, including police disclosure and allegations by the Mother. The issue for the court was how to handle this material without compromising the fairness of the proceedings or endangering the parties, and who should pay for the SA who would represent SK’s interests in CLOSED hearings.

Closed Material Procedure and Special Advocates

A principal legal discussion in this case revolves around the application of a CMP involving the use of SAs, a procedure well-established by cases like Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 and the Justice and Security Act 2013 (JSA 2013). Mrs Justice Lieven reinforced the procedures adapted in family cases to ensure fairness and the protection of parties’ Article 6 ECHR rights when sensitive material is involved. The case also echoes President’s Guidance concerning instruction of SAs in such situations.

Public Interest Immunity and Articles 2, 3, and 8 ECHR

The court had to consider Public Interest Immunity claims due to the sensitive nature of the police material, which implicates the State’s positive obligations under Articles 2 and 3 ECHR to protect individuals’ right to life and prohibition of torture. The rights under Article 8 ECHR were also a factor, given the familial implications and the right to respect for private and family life.

Fair Trial Rights vs. Protection of Parties

At the core was the tension between ensuring the Father’s fair trial rights under Article 6 ECHR and the protection of the Mother and child pursuant to Articles 2 and 3 ECHR. This balance and its associated compromises were deemed essential to achieving a just outcome in these particular proceedings.

Funding of Special Advocates

Another legal principle scrutinized was the funding of SAs, centered on public funding and who should bear the costs when sensitive material is controlled by non-parties, such as police forces. In reference to Re R (Closed Material: Procedure: Special Advocates: Funding) [2017] EWHC 1793 (Fam), Mrs Justice Lieven explored the adequacy of special funding and the authority of the court to order the police to fund SAs.

Outcomes

Mrs Justice Lieven concluded that considering the CLOSED material was essential to the case, and a confidentiality ring was deemed inappropriate for the Father’s lawyers. Thus, appointing a SA was necessary to preserve the process’s fairness, using SASO and counsel from the Attorney-General’s Special Advocate Panel. The West Midlands Police (WMP) was ordered to cover the costs of the SA, capped at £15,000, in acknowledgment of the mixed ownership of sensitive material and the proportionality of costs in the case’s context.

Conclusion

In SK (Father) v RO (Mother), Mrs Justice Lieven expertly navigates the complexities inherent in family law cases involving serious allegations and sensitive information. The case underscores the judiciary’s commitment to ensuring a fair trial while protecting parties’ fundamental rights under the ECHR. The decision balances the roles of all parties involved, including the state, in upholding a fair and just legal system. The ruling stands as a guidance for future cases that wrestle with similar issues of CMP, SAs, and financial challenges in the legal framework of family law.