When does Public Interest Immunity (PII) apply?
Public interest immunity or ‘PII’, as it is commonly referred to in court proceedings, often features in cases involving very sensitive information, usually where there is an ongoing police investigation, or criminal court proceedings. In care proceedings, an application may be made by a party, or the police, to the family court to prevent the disclosure of certain information into the care proceedings.
In particular, PII would be applied for if the information held by a certain party is against public interest or national security. In care proceedings this information would likely be in relation to a parent or the child in the proceedings. If the court decides that the information would be against public interest, then it will be formally excluded and not released to the parties.
Occasionally an order is made against certain public departments, such as the police, to disclose any information they have regarding a parent/other party. This is referred to as a ‘Disclosure Order’. If the department believes that the information they hold for the party would be against the public interest then they may make a PII application.
The court may consider holding a ‘closed hearing’ with only the parties who are already aware of the information permitted to be present. The Judge will then hear from the party making the application for PII and decide whether, on the facts of the case, the information should be disclosed into the care proceedings or withheld.
Categories of documents where a PII application may be required:
In care proceedings, public interest immunity is likely to arise when disclosures are sought for the following types of documents:
- medical records
- local authority records
- local authority records in criminal proceedings
- disclosure to non-parties
- documents held by the police
- statements made in conciliation
A leading case in this area is the case of Re C (A Child) No. 2 – (Application for Public Interest Immunity)[2017] EWHC 692 (Fam). In this case care proceedings had been issued by the local authority due to concerns that the father was an Islamic extremist and would likely travel to Syria to carry out terror related activity. The Local Authority applied for a disclosure order for The Secretary of State for the Home Department (SSHD) to release any information they had pertaining to the Father’s activities. SSHD applied for PII to discharge the order made against them claiming the information would be against public interest. The Judge (Pauffley J) had to use a balancing exercise to decide whether the information should be disclosed to the parties and decided that in this particular case it should not.
The test for Public Interest Immunity
The test for what the Court must consider when deciding a PII application is set out in (R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 and is a 3 part test:
- Is the material relevant to the proceedings and does it pass the threshold for disclosure?
- Is there a real risk that disclosure would cause real damage or serious harm to the public interest?
- What are the factors for and against disclosure?
Relevance
Firstly, the court will have to decide whether the material is necessary to the proceedings or whether they could proceed without the disclosure. Family Procedure Rules 2010, Rule 21.2 sets out the test to be met for an Order to be made for disclosure against a person who is not a party to the proceedings. The test is that ‘disclosure is necessary in order to dispose fairly of the proceedings or to save costs’. In Re C the SSHD argued that there was other evidence that the court could rely on and that the information they held was not the only evidence which passed the disclosure threshold, therefore the decision not to disclose the information would not be unjust or cause additional costs.
The Risks
The court will also need to consider the risk the information poses to the public and consider factors for and against disclosure. In Re C the Judge stated: ‘If a document is relevant and material then it must be disclosed … unless a breach of confidentiality will cause harm to the public interest which outweighs the harm to the interests of justice caused by non-disclosure’. In this case, the breach of confidentiality outweighed the harm to the interests of justice because of the threat to national security. As a result, it was decided that the order for disclosure should be discharged.
When faced with a PII application in care proceedings, the court may well conclude that certain information should not be released. When this happens no party, other than the party which holds the information, will know what that information is.
For and against
In deciding whether to order disclosure the court will in each case have to balance the public interest in maintaining the confidentiality of documents, the disclosure of which might prejudice or inhibit a pending prosecution or investigation, against the public interest in ensuring that a local authority has all material that may assist it in making the best proposals for the future of the child whose case is before the court.
How can our child care solicitors help you?
If you have any questions on the above, or any other child care law related questions, our specialist London child care lawyers can assist you. Care proceedings can be very complex, and we always advise that you instruct and consult a solicitor.
Please contact us on 020 7228 0017 to speak with our team.
