SK (Father) v RO (Mother)

In family proceedings involving sensitive material, the court may adopt a closed material procedure where consideration of the closed material is necessary to determine the child’s welfare and safeguarding risks. A confidentiality ring may be inappropriate where it would place the instructed lawyers in a professionally unacceptable position by giving them information that could not be shared with their client. Where fairness requires the excluded party’s interests to be tested in closed proceedings, a special advocate may be appointed. The costs should be allocated proportionately, having regard to who holds the material, who seeks to withhold it, available public funding, the likely complexity and duration of the hearing, and the need to avoid delay. A police authority need not bear uncapped costs where it does not exclusively own the sensitive material.

This was an interlocutory private law family decision concerning a six-year-old child. The father sought direct contact, while the mother made serious allegations of domestic abuse and raised concerns, including a risk of honour-based violence, which she did not wish to disclose to him. Police disclosure also contained material that could not be disclosed openly.

The court had to determine whether the case should proceed using closed material, whether a special advocate should represent the father’s interests in that process, and who should fund the appointment. Exceptional legal aid funding had been refused, and the police offered to pay half of the estimated costs.

1. Closed procedure and special advocate. The court had to consider the entirety of the mother’s allegations and the police disclosure to assess the child’s best interests and safeguarding risks. Determining the case solely on open material created a real possibility of an inadequate welfare assessment.
2. A confidentiality ring was not an adequate alternative. It could expose the father’s lawyers to allegations against their client which they could not communicate to him, preventing them from meeting their professional obligations. Although closed material procedures necessarily compromise the excluded party’s procedural fairness, the father’s ability to challenge the closed case required representation by a lawyer acting in his interests.
3. The court considered the framework in the Justice and Security Act 2013, while recognising that the statutory civil procedure provisions and CPR Part 82 do not apply directly to family proceedings. Family courts may adapt procedures to replicate appropriate closed-material safeguards. The Attorney-General was requested to appoint a special advocate, with assistance from the Special Advocates Support Office.
4. Funding. The decision in Re R (Closed Material Procedure: Special Advocates: Funding) was materially distinguishable because the police did not have exclusive ownership of the sensitive material. It was therefore disproportionate to require the police to pay all costs without limitation. A cap was justified by the limited volume of closed material, the relatively straightforward factual issues, the anticipated three-day hearing, and Government Legal Department rates.
5. The West Midlands Police were ordered to pay the special advocate’s costs, capped at £15,000. The case was listed for a three-day final hearing on 8–10 January 2024.