A judge in the Family Division of the High Court has backed proposals made by the Justice Secretary for how parties seeking disclosure from the HM Prison and Probation Service (HMPPS) in public law children proceedings should approach the issue.
The case of L, Re (Third Party Disclosure Order: Her Majesty’s Prison and Probation Service)  EWHC 127 (Fam) concerns four children whose father was convicted in 2015 of several terrorist offences. He was released from prison on licence in 2021.
Mr Justice Cobb said the central issue within the care proceedings was the potential risk which is posed to the children by having contact with their father given his proven engagement in terrorist activities.
“Both the mother and the father remain married and ideally wish to live together with the children,” the judge said. “The four children currently have supervised contact with their father twice a week while he continues to live in 'approved premises'. Mr K’s current religious/political ideology will be critical to the assessment of any ongoing risk he may pose to his children.”
At an earlier stage of the proceedings, at a case management hearing and at the request of the parties, Mr Justice Cobb directed disclosure of documents from HMPPS. The direction sought discovery of documents which would shed (it was hoped) more light on the circumstances of the father’s offences, his current attitude to those offences and his conviction, and his ideology. Disclosure was provided.
Counsel for the Justice Secretary subsequently filed detailed written submissions proposing that it would be useful for the court to consider in general terms how third-party directions orders against HMPPS and similar bodies connected with the criminal justice system could in the future be better managed. All parties to the Part IV proceedings responded to those submissions.
Mr Justice Cobb set out the following:
"13. Proposals for future applications for third party disclosure from HMPPS and similar bodies: Ms Paterson [counsel for the Justice Secretary] has proposed, on behalf of the SSJ, that in future, parties seeking disclosure from HMPPS in public law proceedings, whether they give rise to potential national security issues (as this case does) or not, should proceed in the following way:
ii) the application should in the ordinary way also be served on the intended recipient (in this case HMPPS); which would still be the primary and obligatory point of service;
iii) any request for disclosure on a “rolling basis” should be made explicitly clear in the application and/or order;
iv) any correspondence (i.e., not court orders or applications for court orders), should continue to be addressed exclusively to the intended recipient (i.e., HMPPS);
v) any requests for third-party disclosure which are not accompanied by any third-party disclosure order or application should, as now, be sent to the person or body believed to hold the material in question (i.e., HMPPS here), and not to the GLD.
14. Ms Paterson explains the proposals in this way. HMPPS is an arm of the Ministry of Justice, for which the SSJ has responsibility. CPR 1998, r.66.3(1)(d)/(e) makes provision for an appropriate officer acting on behalf of the Crown to make a disclosure statement and/or discharge any other procedural obligation. The accompanying Practice Direction (§2.1) provides, in effect, that in issued proceedings this is the Treasury Solicitor’s Office (i.e., GLD). The principal advantage of service of an order on the GLD, submits Ms Paterson, is that the request for disclosure can be considered by someone who is legally qualified, and who will be in a good position to appreciate not only the significance of the request but also the potential urgency. He/she may also anticipate what classes of documents could be available and whether redaction is likely to be necessary.
15. The SSJ proposes that any request for third-party disclosure against HMPPS or similar body would be made materially easier if it were accompanied by a short summary of the issues with which the court is seised. This may enable the SSJ to suggest the potential relevance of documents which have not been identified by the parties - for example, in the present proceedings, Mr K’s updated OASys report. In my judgment, the parties should obtain explicit permission of the court to provide the summary of relevant information given the provisions of r.12.72-75 FPR 2010 / PD12G FPR 2010; it may be necessary/appropriate to accompany the proposed summary with an application for a reporting restriction order to prohibit further publication of the summary information provided.
16. It is suggested by Ms Paterson that the following information would be of value to the recipient(s) of the third-party disclosure order (i.e., GLD/HMPPS):
i) the case name and number;
ii) the court centre where the proceedings are being heard;
iii) the name of the allocated judge;
iv) the next hearing date;
v) what orders are sought by the applicant in the proceedings and/or under which provision of the Children Act 1989 proceedings have been issued;
vi) a brief factual summary, including the age of the child/children and his/her/their relationship with the offender (ideally in a form approved by the court), together with a reporting restriction order if deemed necessary;
vii) the date of the conviction of the offender, together with the offence, or type of offence if more specific details are not known;
viii) the approximate dates of the custodial sentence;
ix) the approximate date of release (on licence);
x) whether the offender is still under the supervision of the Probation Service (if known);
xi) the date by which it is anticipated that the Family Court will make a determination of the principal application;
xii) a list of the documents requested; this may well include:
a) a Pre-Sentence Report for the offender;
b) a list of the offender’s previous convictions;
c) a transcript of the sentencing remarks made by the judge who passed the custodial sentence (if available);
d) an OASys report for the offender (it is always helpful to specify the date of the last OASys report if known);
e) a Parole Dossier for the offender;
f) any other reports concerned with the offender’s rehabilitation;
g) the date by which disclosure is required and (in general terms) why."
Mr Justice Cobb said: “In my judgement, the proposals set out at §13-16 above can and should usefully be adopted by those making third-party disclosure applications in circumstances similar to those which obtain on these facts.”
The judge said he agreed with a further submission by the Secretary of State for Justice that without notice applications for third-party disclosure (contemplated by r.21.2 FPR 2010) are best avoided, save in cases of genuine emergency.
Mr Justice Cobb concluded: “It is well known that some of the most difficult cases with which the courts must deal span both the criminal and family courts often at the same time; the children involved, and their families need consistent treatment within the justice system - consistency, liaison and, where possible, co-operation across the two systems are essential.
“All parties submit, and I agree, that this case underscores the importance of co-operation and co-ordination between all the safeguarding agencies involved with children in order to achieve good and informed decision-making in their best interests.”