BCC v FZ & Ors

Relevant material in care proceedings may be withheld where disclosure creates a compelling and rigorously assessed risk of significant harm or threatens an important public interest. The court must balance Article 6 and Article 8 rights against that risk and consider whether full, gisted, redacted or other limited disclosure could protect fairness. Non-disclosure is exceptional and must remain under review. A special advocate is a safeguard of last resort. The court may determine the initial issue without one where it has complete disclosure, can assess the material itself and concludes that no disclosure is presently possible. A special advocate may nevertheless be required for later disclosure review and trial.

These were care proceedings concerning a 16-year-old child placed at a confidential address under interim care orders. The local authority relied on police material that had not been disclosed to the parents. The police applied for public interest immunity, and the local authority sought continuation of non-disclosure and no-contact orders.

The case came before the Family Division after earlier hearings before His Honour Judge Hughes and directions from Mrs Justice Pauffley. The issues were whether the material should be disclosed, whether public interest immunity arose, whether limited disclosure was possible and whether a special advocate should be appointed.

1. The material passed the threshold for disclosure because it was necessary for the fair disposal of the care proceedings. Relevance did not determine whether disclosure should occur. The court had to assess confidentiality, public interest immunity, the risk and gravity of harm, the importance of the material and whether lesser disclosure could preserve fairness.
2. The approaches in Re D and Re M and the traditional public interest immunity route required the same balancing exercise. The risk of significant harm to the child was a proper consideration in the police claim for public interest immunity.
3. The court concluded that public interest immunity arose and that none of the confidential police material could presently be disclosed. A blanket prohibition, including disclosure in summary or redacted form, was necessary. The issue had to remain under constant review.
4. A special advocate was not required for the initial decision. The police had made complete disclosure to the court, and there was no filtering exercise for a special advocate to undertake. However, the continuing procedural imbalance meant that a special advocate should be appointed for future disclosure issues and any subsequent trial.

The judgment records earlier interim hearings before His Honour Judge Hughes and directions made by Mrs Justice Pauffley. It is a first-instance decision of the High Court Family Division; no appellate decision is stated.