R v Harrow London Borough ex parte D
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE WOOLF,LORD JUSTICE FOX |
| Judgment Date | 28 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0728-1 |
| Docket Number | 89/0756 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 1989 |
[1989] EWCA Civ J0728-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(MR JUSTICE LINCOLN)
Royal Courts of Justice
Lord Justice Fox
Lord Justice Woolf
Lord Justice Butler-Sloss
89/0756
MR ANTHONY SCRIVENER Q.C. and MR N. LEY (instructed by Messer. Cheek Lesser & Co.) appeared on behalf of the Appellant.
MR R. McCARTHY (instructed by The Solicitor, Department of Law & Administration, London Borough of Harrow) appeared on behalf of the Respondents.
This appeal is from the refusal by Lincoln J. of an application for judicial review of the decision of the Harrow Borough Council of 4th June 1986, that the names of three children be placed upon the Child Abuse Register. The applicant is the mother of the children, and the Borough Council is responsible for the Register.
The applicant has been divorced from the father of the children. She was granted a custody order in 1983, with fortnightly access to the father and a supervision order to the local authority. The divorce and subsequent proceedings have clearly been acrimonious, including a dispute over the paternity of the youngest child. Access to the two elder children by the father has been a cause of continuing litigation between the parents.
On 31st May 1986 the father took out the two elder children on an access visit. He got in touch with a social worker from the respondent Council, and alleged that the mother was hitting them. He was advised to take them to the local hospital. The eldest child, "J", was examined by a paediatrician, who found serious bruising and formed the view that these injuries were non—accidental. The social worker, having heard an account from the child accusing the mother of inflicting them, applied to a Magistrate under Section 28 of the Children and Young Persons Act 1969 for a Place of Safety order, which was granted. The children remained in hospital overnight. On the following day, 1st June, a consultant paediatrician examined both children. I take the description from the judgment:
"He found a large bruise surrounding the right eye in J's case and involving the whole orbital cavity. He also found four bruises on the left chest posteriorly and one bruise on the right chest posteriorly. The bruise surrounding the orbit, he stated, was compatible with an injury caused by a punch and the bruises on the back could have been caused by being struck with a fist. He added: 'I would say that all of these bruises were probably inflicted in a non-accidental manner'. He was uncertain about the injuries to D. The applicant mother also was present on this occasion. She told Dr. Valman that all the bruises were due to the children fighting with each other. He was unable to accept the mother's explanation, the injuries being incompatible with her account of what had happened."
The mother also says that the boy is prone to fantasise.
A case conference was arranged for 4th June. The two paediatricians and the headmistress of the children's school were among those who attended. The mother, through her solicitor, asked to attend. That request was refused, but she was told that she could make written submissions, which she did. A close friend of the mother also made written submissions, which were placed before the case conference.
As a result of the case conference, the children's names, including the youngest, "R", were placed on the At Risk Register. At the same time the two elder children were returned to their mother. The youngest child was never removed from home. The names of all three children were thereafter removed from the Register—"J" and "D" on 9th October 1987, and "R" on 20th March 1988.
Before turning to the issues raised by this appeal, I shall look briefly at the procedures, the subject of the appeal. Social Services Departments of Local authorities, since the early 1970s, have been charged with the duty of keeping Child Abuse or Child Protection registers. They are given guidance in this task by successive circulars and guides issued by the former Department of Health and Social Security.
"Child protection registers.
5.30. In each area covered by a social services department a central register must be maintained which lists all the children in the area who have been abused or who are considered to be at risk of abuse and who therefore are currently the subject of an inter-agency plan to protect them.
……………………….
5.32. The entry of a child's name on the register should normally only occur following discussion at a case conference when abuse or potential abuse is confirmed and an inter-agency agreement is made to work co-operatively to protect the child".
……………………….
"A child's name will normally only be removed from the register when it is agreed in a case conference that formal inter-agency working is no longer necessary to protect the child". (See "Working Together", DHSS, 1988).
It is normally a prerequisite of entry on the register that a case conference has been called, but the case conference is not a decision-making body. However, its recommendation will in practice be followed by the local authority or the NSPCC, which is the decision-making body and has the responsibility for keeping the register. The guides and circulars are advisory in tone, but expected in practice to be followed.
The Harrow guidelines are similar, but not identical, to other local authorities, and set out the people to be invited to attend case conferences. There is no statutory basis for the case conference or the register, but both are considered by the DHSS to be good social work practice and necessary elements for, inter alia, protection of children at risk. Harrow guidelines set out the list of those with a right of access to the information on the register, which is otherwise confidential. It is a carefully defined section of the community, not restricted to social workers, and very broadly consists of those invited to case conferences or agencies in other areas to which the family may have moved.
Three issues were raised on the initial application for judicial review. One only remains for consideration on this appeal, that the conclusions of the case conference on 4th June, and the subsequent placing of the children's names, together with the name of the mother as the abuser upon the Chid Abuse Register, were unfair and unreasonable and contrary to natural justice. A declaration is sought that the mother's name should never have been entered on the register.
Before the Judge it was argued that the mother should have been permitted to attend the case conference and to have been heard. That suggestion is not pursued before this Court. Rather, it is urged upon us that the lowest degree of fairness to the mother, the opportunity to know about and to be allowed to meet the material allegations made against her, was not afforded to her. It is said that the decision was unfair, and the decision-making process was defective on Wednesbury principles.
Mr Scrivener, for the appellant mother, made a number of points. The effect of entry on the register, even if the names of...
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