R (Closed Material Procedure : Special Advocates : Funding)

Where a family court authorises a closed material procedure and a Special Advocate is required, the agency that holds and relies on the sensitive material may be directed to fund the Special Advocate. The absence of an express statutory funding code does not necessarily prevent the court from using its inherent jurisdiction. The Legal Aid Agency has no ordinary statutory duty under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to fund such representation. A Special Advocate must retain reasonable autonomy and should not ordinarily be subjected to a court-imposed costs cap, although the work should be undertaken reasonably and proportionately.

These public law proceedings under Part IV of the Children Act 1989 concerned R, a child aged four, and continuing police intelligence about a possible conspiracy to murder his father. The police resisted disclosure of a small quantity of sensitive material. The court had previously approved a closed material procedure and directed that the father should have a Special Advocate at a further closed hearing.

The Attorney General would not appoint a Special Advocate without funding arrangements. The parties disputed whether the police, the local authority or the Legal Aid Agency should pay, and whether the court should impose a costs cap. The central issues were the proper funding source and the extent of the court’s power to control the resulting costs.

1. The application to discharge the direction for a further closed material hearing was refused. The continuing risk identified by the police remained materially unchanged, and at least one further hearing was required to reconsider disclosure, the need for closed testing and the effect of the material on contact, residence and the threshold under section 31 of the Children Act 1989.

2. The interests of both parents required representation. Their rights under Articles 2, 6 and 8 of the European Convention on Human Rights were engaged, and it would be plainly unfair for the father to remain unrepresented in a further closed hearing.

3. The Legal Aid Agency could not be required under the ordinary statutory scheme to fund the father’s Special Advocate. Funding fell outside the ordinary scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. No application for exceptional case funding had been made, and the court did not decide that such funding was available.

4. The police were directed to fund the father’s Special Advocate and SASO support, including fees already incurred. The police exclusively held the sensitive material, sought to rely on it while resisting disclosure, and had an obligation to ensure that the non-disclosure case was tested as fully and fairly as possible. The analogy with closed material proceedings before the Special Immigration Appeals Commission supported that conclusion. The local authority did not possess the material and played no part in the closed process.

5. The court distinguished HB v A Local Authority & Another [2017] EWHC 524 (Fam). Parliament had created detailed funding provisions for ordinary family representation but had not enacted a code for Special Advocates in exceptional family cases. The inherent jurisdiction could therefore operate outside the statutory code.

6. No costs cap or other costs-management direction was imposed. Although the court had duties to save expense and secure an equal footing under rule 1.1 of the Family Procedure Rules 2010, a Special Advocate was entitled to reasonable autonomy under the analogy of section 9(4) of the Justice and Security Act 2013. The Special Advocate and SASO were nevertheless expected to act reasonably and proportionately.

First-instance determination. The judgment records earlier case-management directions by Pauffley J, including the direction that the father should have a Special Advocate, but no appellate decision is stated.