Police and not council must pay for special advocates in family case, says judge

The police and not a local authority must pay for the provision of special advocates in a rare example of them being required for a Family Court case, Cobb J has ruled.

These security-cleared advocates are usually involved only in national security cases, when sensitive material is placed before a court that must be examined on behalf of parties to whom it cannot be disclosed.

Child R, aged four, lives with his father in a secure location not known to the mother, who has no direct contact with R following “lengthy and bitterly contested private law proceedings” after the couple separated.

In R (Closed Material Procedure : Special Advocates : Funding) [2017] EWHC 1793 (Fam) the judge noted: “When those were at an advanced stage, the father was the victim of a serious and life-endangering attack, which he survived. This led to the trial, and convictions, of a number of people for the offence of conspiracy to murder.”

Special advocates were needed because “the police have assessed, on information supplied, that there is a second, and continuing, conspiracy to murder the father; that information has been shared with the parties to these proceedings”.

The judge added: “It has been confirmed by counsel for the police to the parties in the family proceedings that there is no evidence that the alleged continuing conspiracy involves the mother.”

At an earlier case management hearing, Pauffley J directed that the father should have a special advocate for closed material hearings and the question then arose of who should pay for this.

Arguments were put hat the local authority concerned - which cannot be named - should pay because it had brought the proceedings, or that the Legal Aid Agency should meet the cost.

The judgment said; “In the absence of clear or authoritative steer from statute, guidance or otherwise, and relying therefore on the arguments marshalled before me, I have reached the conclusion that I should direct the agency which holds the sensitive material, namely the police, to fund the special advocate for the father in this case.”

It went on that since the police had said the information concerned could not be openly disclosed they were under an obligation to “ensure that those who are most affected by the information are given the fullest and fairest opportunity to have the case for non-disclosure tested”.

Mark Smulian