Confidentiality a pre-requisite
In X, Y and Z (Disclosure to the Security Service)  EWHC 2400 (Fam) judgment on 6 October 2016 (headed Commissioner for Police of the Metropolis v A Local Authority) McDonald J dealt with an application by the Metropolitan Police (MPS) to release a judgment and mother’s statement in unconcluded care proceedings to the security services (otherwise MI5). MPS had received the documents on their own earlier application. MPS wanted to release the documents to assist in their enquiries (eg in case MI5 could provide them with information about any criminal, including radicalisation, information about the mother: MI5 were not a party to the application).
The mother did not consent nor oppose. All other parties agreed to release. The case turned on whether there should be, and if so what, conditions upon release. MPS said release should be unconditional. Taking the lead for the respondents, Frank Feehan QC (acting for the three-year old’s grandmother) said release should be conditional. McDonald J agreed: the court should maintain control of confidentiality in the documents.
McDonald J provides a masterful summary of the relevant law:
- Children Act 1989 (CA 1989) proceedings (eg care proceedings, as here) are private, and are embargoed from ‘publication’ (Re B (A Child) (Disclosure)  EWHC 411 (Fam),  2 FLR 142, Munby J) by Administration of Justice Act 1960 (AJA 1960) s 12(1)) (paras  and ).
- Publication will not be a contempt under AJA 1960 s 12(1) if it is within the ‘communication of information’ provisions of Family Procedure Rules 2010 (FPR 2010) Part 12 Ch 7 (per AJA 1960 s 12(4)); and as explained by Baker J in Re X and Y (Disclosure of Judgment to Police) EWHC 278 (Fam),  1 FLR 1218) (-).
- The security services (eg MI5) are not included in Part 12 Ch 7 (see table in Practice Direction 12G), so the applicant MI5 must justify to the court any order for release (-).
- CA 1989 s 98(2) dictates when admissions by a parent should be released (Re EC (Disclosure of Material)  2 FLR 725, which still defines the court’s approach to s 98(2)) (-).
- As ever, s 98 is intended to encourage frankness by parties in children proceedings subject to its inherent limitations ().
- In making any release order the court must have in mind any European Convention 1950 rights in play (especially those in Art 6 and 8) ().
- If an order is to be made the court will consider what conditions should be imposed to guarantee confidentiality (including a staged approach) (-). Release to MI5 unconditionally might not be sufficient to guarantee confidentiality. Conditional release was justified (-).
The judge summarises the balance the court must strike: first, between maintaining confidentiality for family proceedings and ‘the strong public interest in the prosecution of serious crime and the punishment of offenders’ which includes ‘the public interest in identifying those who have been guilty of grave offences under the anti-terrorism legislation’; and, secondly, the need to uphold laws ‘aimed at guaranteeing the fundamental rights of the parties to these proceedings, the maintenance and protection of which rights the work of the police and intelligence agencies in a liberal democracy is designed to achieve’ (para ). Where disclosure is sought, the tension created between these competing principles must be balanced fairly and in a Convention-compliant manner by reference to the factors set out in Re EC (above).
Conditions to protect confidentiality in family proceedings
The ratio of the decision was that the court must not interfere with the investigation of serious crime. The judge was satisfied that to refuse the requested permission to MPS might compromise its investigation (para ). However, where need be conditions should be imposed to ensure a proper balance between the ‘various rights and interests engaged [and] having regard to the particular circumstances of the case’ (para ). It was important that the court encourage co-operation between agencies (see eg 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings October 2013 (http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf)) (para ); but the overriding of confidentiality conditions which – as in X, Y and Z – would confidentiality must be justified if release was to be unconditional:
 … However, in circumstances where what is in issue is the disclosure of confidential, and in some cases highly sensitive, material, the court will require evidence concerning the operational impact of refusing disclosure or imposing conditions that goes beyond mere inconvenience. The mere fact that an agency will be required to return to court to obtain permission for onward disclosure is unlikely to be sufficient…
McDonald J was not prepared to override ‘the statutory principle of confidentiality’ (most would probably regard confidentiality as common law, perhaps: see eg Attorney-General v Guardian Newspapers Ltd (No 2)  UKHL 6,  1 AC 109). He was unwilling to order ‘onward disclosure’ unconditionally (para . He therefore ordered release of documents subject to conditions which maintained control of confidentiality in the documents with the family courts (see paras -).
MI5 must come back to court, if need be by closed material procedure (considered as a coda to the judgment at paras  to ), for further release. The emphasis will remain – so far as possible – for the family courts to preserve the frankness which s 98(2) is intended to encourage; and to do so alongside the rights to confidentiality of the children and other parties involved.