C (A Child), Re

Third-party disclosure in care proceedings must be necessary to dispose of the proceedings fairly. Necessity lies between what is indispensable and what is merely useful, reasonable or desirable. Where sensitive information supplied by a public authority forms the evidential foundation of proceedings, the court may require disclosure of the underlying material, even though it will not revisit the public authority’s expert decision itself. Findings of significant harm must be based on evidence, not suspicion or unsupported assertion. A claim for public interest immunity must be addressed through the proper decision-making process, including a certificate identifying the competing public interests. The court then makes the final determination on disclosure, while giving considerable weight to the Secretary of State’s assessment.

The local authority commenced care proceedings concerning a very young child after receiving counter-terrorism information about the father and after the refusal to issue him with a replacement passport. The court made disclosure orders against the Secretary of State for the Home Department, who was not a party. The Secretary of State applied to discharge those orders, arguing that the request was too wide, unnecessary and sought to revisit an expert administrative assessment. The central issues were whether disclosure was necessary, whether the request complied with the relevant guidance, and whether the Secretary of State could avoid the public interest immunity process by seeking discharge of the orders in advance.

1. The application was dismissed. The disclosure orders were legitimately made and remained in force.
2. Disclosure against a third party under Family Procedure Rules 1991 r.21.2(3) is permitted only where it is necessary to dispose of the proceedings fairly. Necessity has an imperative quality. It lies between what is indispensable and what is merely useful, reasonable or desirable, as explained in Re H-L (a child) [2013] EWCA Civ 655.
3. The order’s reference to the court needing information about extremist or radicalised conduct was a statement of genuine necessity. The request was necessarily broad because the local authority did not know what information the Secretary of State held. The guidance did not require greater specificity in the circumstances.
4. Care findings must be founded on evidence, including properly drawn inferences, rather than suspicion or speculation. A bare assertion from a respected agency cannot by itself establish the statutory threshold.
5. The court was not seeking to revisit or challenge the refusal to issue a replacement passport. That decision, standing alone, could not establish the threshold. However, the information underlying the decision could be highly relevant to whether the child was likely to suffer significant harm and could therefore properly be sought.
6. The Secretary of State’s consideration of sensitive material involves three stages: assessing relevance and materiality; assessing whether disclosure would cause substantial harm to an important public interest; and deciding whether to claim public interest immunity or seek a closed material procedure under s.6 of the Justice and Security Act 2013. The court makes the final determination on a claim for public interest immunity, although considerable weight is given to the Secretary of State’s assessment.
7. The Secretary of State’s application attempted to short-circuit that process before a public interest immunity certificate had been issued. Until such a certificate existed, there was no proper mechanism for the court to determine the claim. The child and parents’ rights to a fair trial and respect for private and family life reinforced the need for an effective mechanism to receive and consider relevant sensitive material.