D v Buckinghamshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Year | 2009 |
| Date | 2009 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Findings of fact – Disclosure – Appellant encouraging child to come to UK from India to further education – Emergency protection order being made after local authority investigations revealing ‘grooming’ behaviour by appellant – Local authority bringing care proceedings and seeking injunctive relief to prevent contact – Appellant going abroad and child being given leave to return to India – Judge making no order in care proceedings and discontinuing injunction proceedings – Whether judge erring by making findings of fact and authorising their disclosure to named bodies without notice to appellant.
The child, who was 16 years old, came to the United Kingdom from India in June 2005. He was met at the airport by D, who had invited him to the country to further his education, having been employed as a teacher at his school in India. During the journey to D’s home, a bus driver became suspicious of the arrangement and reported his concerns. Inquiries by the defendant local authority revealed that D had been dismissed from a number of teaching posts because he had lied about his qualifications and/or it had been concluded that his behaviour towards students was unacceptable. Whilst there was no specific allegation of sexual abuse, it was the local authority’s view that the pattern of behaviour which emerged could be described as ‘grooming’. The local authority obtained an emergency protection order in respect of the child, who was removed from D’s home. It initiated care proceedings under Pt IV of the Children Act 1989 and sought injunctive relief under the inherent jurisdiction of the High Court so as to prevent contact between D and the child, since D was not a party to the care proceedings. D later wrote to the judge indicating that he did not intend to continue his involvement in the proceedings and would be going abroad. On 16 September, the judge granted leave for the child to return to India, which he did, and listed the local authority’s application to withdraw the care proceedings. On 20 October, the judge heard evidence and made a number of findings of fact before making no order in the care proceedings and discontinuing the injunction proceedings. The findings of fact, which covered eight schools at which D had been employed, did not amount to findings of indecent assault or active sexual abuse, but in their totality painted a worrying picture in child protection terms. The judge also made orders authorising disclosure of the findings to named bodies, notwithstanding that D had no knowledge of the disclosure application. On 13 February 2006, D applied to set the order aside. The judge decided to
review the earlier order and re-heard the matter fully in November. On 10 January 2007, he held that the local authority had been found to have a reasonable belief that D posed a risk to any child or young person in his care or company and was not an appropriate person to have care of children or young people. The list of disclosure recipients was ultimately reduced to three, namely the Department for Children, Schools and Families (DCSF), the Home Office and the High Commission of India. The DCSF had responsibility for maintaining a list of those prohibited from holding teaching posts, pursuant to s 142 of the Education Act 2002 (List 99), and operated another exclusionary list of individuals ‘considered unsuitable to work with children’, provided for by the Protection of Children Act 1999 (the POCA list). D appealed. He submitted that the judge (i) should not have found facts at all since there was no live issue before the court, D having gone abroad and the child being given leave to return to India, and (ii) should not have authorised disclosure of his findings, there being no ‘real and cogent evidence of a pressing need’ to disclose.
Held – (1) Parties had no right in family proceedings to discontinue at will and always required the leave of the court to withdraw pursuant to r 4.5(1) of the Family Proceedings Rules 1991, SI 1991/1247. Accordingly proceedings remained active until the court otherwise determined. It was therefore open to a court to find facts even where there was no live issue. Sometimes it was necessary to do just that either because a further application might in due course be made in respect of the child or because a party to those proceedings might in due course become involved in the life of another child. That might be a long time later when in practice it might be too late to investigate the original circumstances of, say, alleged injury, abuse or other misconduct. The requirements of r 4.5(1) had a sound basis in practical experience. Whether the judge should have found the facts in the instant case was, however, a separate issue. Some of the issues laid before him could be individually criticised as stale, but the force of the findings lay essentially in their cumulative effect and the overall picture so presented. Many of the matters had been the subject of disciplinary findings and the overall picture was a consistent one. The judge had been entitled to conclude that D was a man who might well continue to associate with children and also pose a risk to them and, accordingly, it was both desirable and permissble to draw the information together and consider its implications. The judge had thus been right to act as he had, subject only to the question of notice. There was force in the complaint that D had had no notice of the judge’s intentions, although the reason for that had simply been his own voluntary act in leaving the country and furnishing no address. In those circumstances, the judge had been right to accede to D’s application to reconsider the October 2005 order and to re-hear the matter fully in November 2006.
(2) Matters held on the basis of honest belief on reasonable grounds by those who had child protection responsibilities came within the potential
ambit of disclosure orders, although it was necessary to acknowledge the need for there to be ‘real and cogent evidence of a pressing need’ for the requested disclosure. In the instant case, the judge had not only been entitled to order disclosure to the Secretary of State, but had been right to do so. He had made a series of findings which had been open to him on the evidence. Drawn together, they painted a worrying picture of potential risk to other children or young people. There were entirely reasonable grounds to believe that D would seek such involvement in the future. It was in respect of such a situation that the statutory lists had been created. It would be for the Secretary of State to decide whether entry in a list (and if so which) should be made. Furthermore, there would be an opportunity for representations to be made by D and there was an appellate regime. However, in respect of any other proposed disclosure there lacked any evidence of pressing need for disclosure outside the statutory framework. The statutory regime was extensive and was known and accessible to those who had professional responsibility for the care and protection of children. Nothing in the instant case warranted going beyond that. The child was now an adult and so was outside the court’s jurisidiction. It followed that whilst the essence of the judge’s judgment was to be upheld, the matter would be remitted to him with a view to determining the precise form of the disclosure schedule and thereafter authorising disclosure to the DCSF but not otherwise; Re C (sexual abuse: disclosure to landlords)[2002] 2 FCR 385 considered.
Cases referred to in judgmentsC (sexual abuse: disclosure to landlords), Re[2002] EWHC 234 (Fam), [2002] 2 FCR 385, [2002] 2 FLR 375.
EC (a minor) (care proceedings: disclosure), Re[1996] 3 FCR 521, sub nom Re C (a minor) (care proceedings: disclosure) [1997] Fam 76, [1997] 2 WLR 322, sub nom Re EC (disclosure of material) [1996] 2 FLR 725, CA.
R v A Local Authority in the Midlands, ex p LM[2000] 1 FCR 736, [2000] 1 FLR 612.
R v Devon CC, ex p L [1991] FCR 599, [1991] 2 FLR 541.
R v Harrow BC ex p D [1989] FCR 729, [1990] 3 All ER 12, [1990] Fam 133, [1989] 3 WLR 1239, [1990] 1 FLR 79, CA.
AppealBy appealing against an order of Judge Altman dated 18 March 2008, D in substance appealed against the judge’s judgment of 10 January 2007, whereby he made findings of fact in relation to the risk posed by D to any child or young person in his care or company, and authorised their disclosure to a number of named bodies. The facts are set out in the judgment of Hedley J.
Timothy Pitt-Payne and Kathryn White for D.
Justin Ageros for the local authority.
.
HEDLEY J(delivering the first judgment at the invitation of Thorpe LJ).
Introduction[1] The appeal is brought by leave of Wilson LJ. It is in the form of an appeal against an order of Judge Altman dated 18 March 2008 but (as Wilson LJ points out in his directions order) it is in substance an appeal against the judge’s judgment of 10 January 2007.
[2] This case raises two difficult questions: first, as to the extent to which information that arises or facts found in the family proceedings should be disclosed to any person or body who would not, under the rules of court, be privy to them; and secondly as to the basis on which such disclosure should be made.
[3] In the last two decades social policy has very much been concerned with the provision and maintenance of...
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