X, Y and Z (Disclosure to the Security Service)

Disclosure of confidential material from family proceedings is not a binary choice. The Family Court may permit disclosure while imposing conditions needed to preserve confidentiality and ensure that any interference with Article 8 rights is necessary and proportionate.

Where material is disclosed to the Security Service for a specified investigative purpose, internal handling conditions may be unnecessary if the Service’s safeguards are sufficiently rigorous. Onward disclosure outside the Service is materially different. It may involve unknown recipients, purposes and jurisdictions, and therefore ordinarily requires further permission from the Family Court.

Assertions of reduced operational agility do not, without evidence beyond inconvenience, justify removing such a condition.

The Metropolitan Police Service sought permission to disclose to the Security Service a mother’s statement and the judge’s fact-finding judgment from continuing care proceedings. The material concerned findings that the mother had harmed the child and that the father was involved in terrorism-related activity in Syria, with plans for the mother and child to join him.

No party opposed disclosure to the Security Service in principle. The dispute concerned whether conditions should regulate the Security Service’s handling and onward disclosure of the material. The central issue was whether disclosure could be authorised without conditions, having regard to confidentiality, child welfare, criminal investigation, national security and Convention rights.

1. Permission and applicable framework. Disclosure to the Security Service was not authorised as of right under FPR 2010 r 12.73(1)(a). It fell within FPR 2010 r 12.73(1)(b), so the MPS had to establish that disclosure should be permitted. The court applied the balancing factors identified in Re C (A Minor)(Care Proceedings: Disclosure), including child welfare, confidentiality, frankness, the administration of justice, the investigation of serious crime, relevance and inter-agency cooperation.
2. Conditions and proportionality. The court’s choice was not confined to granting or refusing disclosure. It could impose ancillary conditions to maintain a fair and Convention-compliant balance, including under Article 8 of the ECHR. The timing of an application, the agency seeking disclosure and the proposed recipient could materially affect the balance, supporting a staged approach.
3. Disclosure to the Security Service. Disclosure from the MPS to the identified Security Service was permitted. It served a legitimate and important purpose in assisting the investigation of serious terrorism-related offences. The material was relevant, and refusal could compromise the MPS investigation. The court accepted that the Security Service’s internal safeguards were rigorous and imposed no detailed internal-handling conditions, save that the order had to be brought to the Director-General’s attention.
4. Onward disclosure. Onward disclosure outside the Security Service required further permission. It could amount to publication for the purposes of section 12 of the Administration of Justice Act 1960 and created a significantly greater risk of wider dissemination, prejudice to the child’s welfare and a chilling effect on frankness in family proceedings. Section 2(2)(a) of the Security Services Act 1989 supplied only a broad necessity criterion and did not enable the court to assess the circumstances of further disclosure against the factors governing family-court disclosure.
5. Operational agility and procedure. The bare assertion that conditions would impair operational agility was insufficient. The Service accepted that it was accustomed to court-imposed conditions, and urgent applications could be dealt with outside normal court hours. Any future application might initially be without notice and might require a closed procedure or special advocates, but the existing procedure could be adapted rather than replaced.
6. Order. Permission was granted to disclose the mother’s statement and the fact-finding judgment to the Security Service. The material was not to be disclosed or discussed outside the MPS, CPS or Security Service without further permission, and the order was to be provided to the Director-General.

not stated in the judgment.