Sheffield City Council v M

Special Advocates may be appointed in family proceedings where sensitive evidence is withheld from a respondent and the respondent’s effective participation would otherwise be impossible. Such appointments remain rare and are a measure of last resort.

In a Forced Marriage Protection Order application, the court must protect the subject’s Convention rights while accommodating the respondent’s Article 6 rights. Where the order is challenged, the court should consider disclosure and procedural fairness with particular care. Appointment is proportionate where the closed material is essential to the protective application, disclosure may cause its withdrawal, and no other mechanism can secure a fair determination.

The Local Authority sought final Forced Marriage Protection Orders protecting two children from forced marriage. Existing orders prohibited the parents from removing the children from England and Wales, and the children’s passports were retained by the police.

The father applied to discharge the orders and sought disclosure of material relied upon by the Local Authority but withheld from the parents. The court had previously determined in closed proceedings that the material should remain closed. The issue was whether a Special Advocate should be appointed to represent the father in relation to disclosure and, if necessary, the substantive applications.

1. Appointment ordered. A Special Advocate was appointed to represent the father at the disclosure hearing and, if closed material remained undisclosed, at the final hearing of the applications.
2. FMPO jurisdiction. Part 4A of the Family Law Act 1996 is deliberately broad and flexible. The court may make protective orders and impose prohibitions, restrictions or requirements directed to preventing forced marriage. It must have regard to all the circumstances, including the protected person’s health, safety and well-being.
3. Substantive approach. The four-stage approach in Re K (Forced Marriage: Passport Order) applies. The court must establish the underlying facts, determine whether the statutory protective purpose is engaged, assess risks and protective factors including any Article 3 risk, and then accommodate Article 3 and Article 8 rights by imposing the minimum measures necessary. The exercise is not an ordinary balance where Article 3 is engaged.
4. Disclosure. Article 6 does not create an unqualified entitlement to see all documents. Following Re B (Disclosure to other parties) and Re R (Children: Control of Court Documents), withholding is permissible only where strictly necessary, with rigorous examination of the feared harm and safeguards to counterbalance procedural disadvantage.
5. Why appointment was proportionate. The orders had serious consequences and the closed material was essential: the Local Authority accepted that it could not justify the orders on the open evidence alone and might withdraw its application if disclosure were ordered. The father could not meaningfully challenge the orders without a means of scrutinising the closed material. The Children’s Guardian could not represent his interests, and no alternative mechanism had been identified. Appointment therefore accommodated the father’s Article 6 rights while preserving the court’s ability to protect the children.
6. The Special Advocate was directed to confer with the father and open representatives, review the closed material, make submissions on disclosure or its gist, meet the information owners, and participate in any part-closed final hearing. If all material became open, the Special Advocate’s role would fall away.