A (A Child) v The Chief Constable of Dorset Police

In a civil claim challenging detention by the state, the claimant must generally know the case and evidence relied on to justify the interference with liberty. A court cannot ordinarily replace that requirement with a closed procedure or a special advocate without statutory authority or informed agreement. Where confidential material affecting a third party’s Convention rights is involved, the court may distinguish between disclosure of the broad nature of the feared harm and disclosure of the evidence supporting the reasonable grounds for believing it would occur. A limited arrangement may therefore be adopted by consent, allowing the claimant’s lawyers to examine sensitive evidence without disclosing it to the claimant, provided the claimant receives a sufficient gist to understand the justification advanced.

A sixteen-year-old claimant sought judicial review, declaratory relief and damages after Dorset police removed him from a takeaway and detained him at a place of safety under section 46 of the Children Act 1989. The police relied on concerns about an adult, identified as B, and proposed to defend the claim by reference to confidential information concerning B. B applied to prevent disclosure of the defendant’s summary grounds and supporting evidence.

The central issues were whether the claim could proceed without disclosure of the reasons and evidence relied upon, whether it could be divided into general and specific issues, and whether a closed procedure, special advocate or stay was permissible.

1. Disposition. Permission to bring the claim was granted. The defendant was directed to serve its summary grounds with specified deletions and to provide the claimant with a gist of the nature of the harm feared. The gist was subject to an order against onward disclosure. The claimant’s legal advisers could inspect the confidential material on written undertakings not to disclose it to the claimant pending further order.
2. The court applied the principles stated in R (Al Rawi and others) v The Security Service [2010] EWCA Div 482. In an ordinary civil claim between citizen and state, the court ordinarily sits as an arbiter, and the defendant must justify an interference with liberty by showing that the feared contingency fell within the statutory power, complied with Article 5 of the ECHR and was supported by reasonable grounds.
3. The claimant needed to know the broad nature of the harm said to justify detention. That information was material to proper purpose, the application of section 46 of the Children Act 1989, Article 5, proportionality, the seriousness and likelihood of harm, and the adequacy of reasons. The detailed evidence supporting the reasonable grounds was distinct and could, on the facts, be inspected by the legal team without immediate personal disclosure.
4. A court could not compel the claimant to authorise his lawyers to inspect material withheld from him. Such an arrangement had to be free, informed and voluntary. A closed procedure and special advocate to determine whether the detention was justified were objectionable in principle and unlikely to be workable here. Nor should an otherwise arguable claim be stayed or dismissed under Carnduff v Rock [2001] 1 WLR 1786, or divided into abstract general and specific issues.
5. The court distinguished proceedings primarily concerned with protecting a child’s welfare or the public from the present claim, which concerned adjudication between the claimant and the state. The third party’s Convention rights nevertheless required careful protection, making the consensual gist-and-lawyers’ inspection arrangement the realistic course.

First-instance judicial review proceedings. The judgment records that an application for permission to appeal to the Court of Appeal was contemplated, but no appellate decision is stated.