Closed material in Forced Marriage Protection Order proceedings should continue – for a short period – to be withheld from parents in context of care proceedings, High Court rules

Simon Colton KC, sitting as a Deputy High Court judge, concluded that although the withheld information was relevant to the issues in the care proceedings, immediate disclosure to the parents would involve “a real possibility of significant harm to an identified individual”.

Outlining the background to the case, the judge said that in early 2026, the applicant local authority received a referral, via the Forced Marriage Unit, reporting that a child, “X”, had ten months earlier been through an ‘engagement ceremony’.

In March 2026, on the application of the local authority and without notice to their parents, a judge sitting in the Family Court made a Forced Marriage Protection Order (‘FMPO’) in respect of X and his younger brother.

As provided for by Family Procedure Rule (FPR) 11.7(2), at the time of making the FMPO, the judge sitting in the Family Court directed the withholding of certain submissions made, and evidence adduced, for and at the hearing of the FMPO application.

Later that month the local authority made a further application, seeking a care order in respect of the children. An interim care order was made that day.

Simon Colton KC said: “There was a hearing before me [in] September 2026, to decide whether the information withheld from the parents in the FMPO proceedings should also be withheld from the parents in the context of the care proceedings.

“[…] The appropriate course for a court to take when faced with an application to withhold information, disclosed in the course of an application for an FMPO, which is being relied on in the context of care proceedings, is a matter on which there appears to be no direct authority. However, I have been greatly assisted by the submissions of all Counsel, and seek to set out in this OPEN judgment the law to be applied where such an application is made. In a CLOSED Annex to this judgment, I have applied the law to the facts of this case.”

Considering the case, the judge noted that in Re T (Children: Non-Disclosure), Peter Jackson LJ, with whom Baker LJ agreed, held that a court that is asked to authorise non-disclosure in the interests of a child should ask itself the following questions:

“1. Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them?

2. Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability?

3. Can the feared harm be addressed by measures to reduce its probability or likely impact?

4. Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure?

5. Where the child's interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances?

6. If non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?”

The judge continued: “I note that, as is made clear at [21] in Peter Jackson LJ’s judgment, these principles apply both where the interests sought to be protected by non-disclosure are those of the subject child, and where they are those of some other person.

“I understand this to reflect the decisions of the Supreme Court in Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531, especially at [63]-[65]; and in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2013] 2 AC 66, especially at [14]-[24]. Those cases establish that the common law does not generally permit information to be withheld from one party only (i.e., a closed material process), but there is a specific exception where the non-disclosure is in the welfare interest of the subject child of family proceedings. There is a further exception, via the Human Rights Act 1998, where it is necessary to withhold information to protect the Convention rights of some other person.”

The judge said: “I do not seek to gloss the Court of Appeal’s description in Re T of the approach to take, which is of general application. However, in my judgment, in the particular context of a factual situation where there is a risk of forced marriage, it is appropriate to have that context in mind when assessing the harm that may be caused, directly or indirectly, either to the child, or to any other person, from the disclosure of material.”

Concluding the case, Simon Colton KC said: “For reasons set out in detail in the CLOSED Annex to this judgment, applying to the particular factual situation before me the framework set out in Re T (which, as I have noted, applies wherever there is feared harm to an individual), I have concluded that the Withheld Information should continue to be withheld from the parents in the care proceedings for a short period.

“I have concluded that the Withheld Information is relevant to the issues in the care proceedings, but that immediate disclosure to the parents would involve a real possibility of significant harm to an identified individual.

“I have concluded that the feared harm cannot be reduced by some other measure, such as providing the gist of the Withheld Information at this time.”

The judge added: “Overall, I have concluded that the interest in preventing harm to the identified individual so compellingly outweighs the rights of the parents to see the information at this time, that the information should – for a short further time – continue to be withheld. I have approved the outline of a plan produced by the Local Authority which will lead to the disclosure of the Withheld Information. In the interim, I am satisfied that the continued interference with the parents’ rights is proportionate to the objective of avoiding such harm.”

Lottie Winson