Held, order for funding by the police authority. (1) The guidance of the President of the Family Division, The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases (26 March 2015), made it clear that the Attorney General should not be expected to fund a special advocate in these circumstances. Nor could the Legal Aid Agency be challenged on its conclusion that it was under no statutory duty to fund the special advocate. In the absence of clear or authoritative steer from statute, guidance or otherwise the agency which held the sensitive material, here the police authority, should be directed to fund the special advocate for the father in relation to fees already incurred and to be incurred. The police had exclusive ownership of the sensitive material and wished to ensure (a) that the court was in possession of that material and (b) that the court was aware of the reasons why disclosure of that material would be contrary to the public interest; it proposed that the sensitive information was therefore presented to the court exclusively in closed session, and that its disclosure to the parties should be closely and rigorously controlled. Having taken that position, the police authority should be required to broaden its obligations to ensure that those who were most affected by the information were given the fullest and fairest opportunity to have the case for non-disclosure tested. Although Parliament had made detailed provisions for the representation of parties in family proceedings generally, Parliament had not yet laid out a code for the funding of special advocates in such exceptional family cases. There was, therefore, room for implying the existence of additional powers under the inherent jurisdiction which lay wholly outside the relevant statutory code (paras 27–30).

(2) On the question of the imposition of a costs cap, a special advocate should be enabled to exercise reasonable autonomy in the way in which the way the work was undertaken: see section 9(4) of the Justice and Security Act 2013. Furthermore, since the special advocate appointed to represent the interests of the mother appeared to have had reasonably free rein to investigate matters in open and closed session there was a potential for unfairness if the father’s special advocate and the SASO were to be circumscribed significantly by the court in the work they could undertake. While the court had an obligation under FPR r 1.1(2)(d) to save expense, it had an equally significant responsibility under FPR r 1.1(2)(c) to ensure that the parties were placed on an equal footing (para 34).