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Sheffield City Council v M & Ors [2022] EWHC 128 (Fam)

Poole J sets out his reasons for sanctioning the appointment of a Special Advocate for the Respondent father to a Forced Marriage Protection Order application, in which the Applicant sought to withhold certain information from the Respondents.

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The Local Authority applied for Forced Marriage Protection Orders for two girls, A and B, who were aged 16 and 13. The girls lived with their Father in England, their Mother lived in Bangladesh. The family were brought to the attention of the Local Authority when the Father purchased one-way tickets to Bangladesh for himself and the girls, and informed A's school that he would be taking the children for a short trip to visit family. After South Yorkshire Police made enquiries, the Local Authority applied without notice to the parents for a FMPO in respect of each child.

The court granted both FMPOs, prohibited the parents from removing the children from the jurisdiction, and ordered that the police retain the children's passports.

In making its application, the Local Authority had relied upon information which was provided to the court and to the Children's Guardian, but not disclosed to the parents, "the closed material". The Father applied for disclosure of the closed material, discharge of the FMPOs and discharge of the passport orders. The Mother did not engage with the proceedings.

The case raises the question of how a respondent's Article 6 rights might be protected upon an application to withhold information from them. All parties agreed that, unusually, a Special Advocate should be appointed to represent the Father's interests in determining the issue of disclosure and then, if necessary, representing the Father at a final hearing.

Poole J's judgment summarises the law relating to FMPOs and applications to withhold information in cases concerning children, focussing in particular on the necessity of accommodating all parties' Article 3, 6 and 8 rights. The judgment quotes Sir Andrew McFarlane in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190, on the need to 'accommodate' rather than 'balance' Article 3 and 8 rights, given the absolute nature of Article 3 rights.

Concluding, Poole J notes that using a Special Advocate in family proceedings is rare and should continue to be rare. At paragraph 20, he gives ten detailed reasons why the appointment was necessary in this case. The following three reasons are perhaps most significant:

• FMPOs, while protecting fundamental rights of the protected person, also have a far-reaching impact on the respondent. Breach of an FMPO is punishable with up to five years' imprisonment (sub paragraph i).

• The closed material was of profound significance to the application, such that there would be insufficient grounds to justify the making of the FMPOs without it. Poole J identified a risk that if the Local Authority were ordered to disclose the material it would instead elect to discontinue the application, and that if the Local Authority were not permitted to rely on the closed material, there would be insufficient basis for the orders. Accordingly, in the Judge's view – and without yet hearing from the Special Advocate – the only way to protect the children was to keep the material closed (sub-paragraphs iv and v).

• The appointment of a Special Advocate would accommodate the Father's Article 6 rights, while also allowing the court to consider the closed material and take measures to protect the rights of the children. Nobody had identified another strategy for protecting the Father's Article 6 rights while also allowing the court to dispose fairly of the application (sub-paragraphs viii and ix).

Finally, Poole J set out a detailed process for the involvement of the Special Advocate in the proceedings, which may provide guidance in future cases.

Case summary by Savannah Bullen-Manson, Barrister, Field Court Chambers

For full case, please see BAILII