Re M (A Child) (Children and Family Reporter: Disclosure)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1199 |
| Docket Number | B1/2002/1120 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2002 |
[2002] EWCA Civ 1199
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE RUDD)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thorpe and
Mr Justice Wall
B1/2002/1120
B1/2002/1095
ANDREW McFARLANE QC and MISS JESSICA HABEL (instructed by Messrs Bindman & Partners of London WC1X 8QB) appeared for the appellant mother.
ROBIN SPON-SMITH (instructed by CAFCASS Legal Services of London EC4A 3BN) appeared for CAFCASS.
MARK EVERALL QC and DOUGLAS TAYLOR (instructed by Messrs Lamport Bassitt of Southampton SO17 1AX) appeared for the respondent father.
Doubts and concerns have arisen concerning the duty of a children and family reporter (CFR) in the service of CAFCASS who, in the course of enquiries that necessarily precede the filing of a report, encounters evidence or suspicion of child abuse. Is the CFR free to report concerns direct to the relevant social services department or must the CFR report concerns to a judge of the court that directed the report in order to seek his directions and particularly his permission to report to social services. We are told by Mr Spon-Smith, who represents CAFCASS as the principal appellant, that a CAFCASS survey demonstrates that the CFR is required to apply to the judge for permission only in the counties of Hampshire, Essex and Norfolk.
The chairman of the Portsmouth Area Child Protection Committee wrote to Her Honour Judge Linda Davies, the designated judge of the Portsmouth Care Centre, on 13 March 2002 to express the considerable concerns of the members of the committee at this restraint on the duty of the CFR to collaborate in the protection of children. By her response of 22 March Judge Davies acknowledged the difficulty which she had discussed with the liaison judge for the circuit. She said that the matter would be referred for consideration at the President's annual conference to take place in the second half of May. The issue had in fact already been brought to Judge Davies by the local CAFCASS manager and Judge Davies had prepared a memorandum dated 11 February which drew attention to the conflict between paragraph 4.19 of the National Standards for Probation Service Family Court Welfare Work and Rule 4.23 of the Family Proceedings Rules 1991. Judge Davies sensibly suggested that, on the basis that statutory provisions required prior permission, arrangements needed to be made locally to set up a duty judge roster for the determination of urgent applications replicating similar arrangements on foot in Oxfordshire and Buckinghamshire.
In the midst of these developments a contested case was developing in the Southampton County Court to settle disputes between A and L M regarding their only child L, born on 11 February 1997. Her parents had married on 14 August 1996 but separated in April 1999. L had moved to live with her father in Southampton on 7 September 2001. On 10 February 2002 her mother removed L from her father's care at the conclusion of a period of staying contact. On 25 February she applied for a residence order but on 28 February the district judge ordered L's return to her father's care by 6.00pm on 1 March. At the same time he directed that a report be filed by a CAFCASS officer by 23 May. On 26 March His Honour Judge Rudd heard the mother's interim residence order application and, as a result of a firm indication given during the course of the mother's evidence, a consent order was negotiated confirming the status quo. On 30 April Mrs Middleditch, the experienced CFR to whom the case had been allocated, interviewed both the mother and her sister. During the course of the conversation they informed Mrs Middleditch that L had been upset by seeing the father and his girlfriend naked and kissing in the bathroom and by seeing her father urinating in her presence.
No doubt mindful of the local debate, Mrs Middleditch on the same day sent an e-mail to Judge Rudd informing him of the allegations and suggesting that there might be a need for investigation by social services. On 3 May she sent a chaser by fax and e-mail. In the fax she stated:
"I interviewed the mother and the maternal aunt on 30 April 2002 and there were serious allegations made which may need referral to social services.
In the light of the above allegations I have concerns about the welfare of the child and am therefore seeking directions from the court in respect of whether or not this matter should be referred to the social services department for further investigation."
Judge Rudd endeavoured to set up a hearing on notice to the parties for 9 May. On the day the judge managed to assemble Mrs Middleditch together with counsel for both the mother and the father. He heard briefly from Mrs Middleditch who hardly expanded her previous reports to the judge. He then heard submissions from counsel and delivered his judgment. He refused Mrs Middleditch leave to disclose the material and granted permission to appeal to her and to the mother.
In his judgment Judge Rudd told the story of a case he had previously experienced in which the CFR had taken an allegation by a mother that a father had touched his son's penis to the local authority with uncontrolled adverse consequences. Judge Rudd explained that he had therefore raised the matter with Her Honour Judge Davies suggesting the requirement to seek permission and the introduction of the system to ensure that the judge could be reached without delay. That introduction, said Judge Rudd, had led to the letter of 13 March from the chairman of the Portsmouth ACPC. Judge Rudd continued by considering the arguments advanced in that letter as well as the local practice guide, Hampshire Family Court Welfare Child Protection Procedure 2001. The judge criticised policy and practice statements in both documents in language that is more forthright than diplomatic. In any event his criticism is preceded by a succinct statement of his conclusion on the point of principle. He said:
"The fundamental question in this case is: is leave needed? I have no doubt in saying that leave is needed to disclose to third parties, material contained in the course of investigations. The report is to a judge at his instigation, and if the CAFCASS officer wants to disclose information to third parties, then to the judge must he or she come and ask for leave."
The judge then turned to the facts of the case before him to determine whether or not to grant permission. In concluding that permission should be refused he explained himself at some length. First he raised questions as to the mother's credibility. Next he questioned whether, even if the allegations were true, they demonstrated that L was at risk of harm. Finally he pointed out that earlier allegations by the mother had been investigated by social services and found to be baseless. He also pointed out that the father's refutation of earlier allegations had been corroborated by L's doctor. He pointed out that he was in a better position to exercise a judgment than Mrs Middleditch since he was not subject to the local procedures that bound her and could look at the issue in the context of the whole of the pending proceedings.
Although on what the judge rightly described as the fundamental point his reasoning is extremely brief, he knew that he had the support of the designated judge and further that the local CAFCASS service had consulted CAFCASS Legal who had confirmed that the judge's permission was required.
Before us the case has taken a different emphasis. The permission granted to Mrs Middleditch has been assumed by CAFCASS. CAFCASS has not adopted the opinion earlier expressed by its legal branch. Mr Spon-Smith's primary submission is that there is nothing either in statute or in rules of court or in the inherent relationship between judge and CFR that compels the CFR to seek permission. The CFR has an independent professional duty to protect children at risk and exercises an independent discretion as to whether and what to report to social services. He submits that the CFR has a right to consult with the judge in cases of difficulty but is under no obligation to do so. He accepts that if the CFR has reported concerns to social services he should take the first available opportunity to inform the judge.
Mr McFarlane QC for the mother adopts and expands upon Mr Spon-Smith's submissions. Mr Everall QC for the father identifies three questions for determination:
i) Is permission required,
ii) upon what principles should it be granted, and
iii) was the judge plainly wrong to refuse permission?
In stating my conclusions on the comprehensive and skilful submissions from the Bar I will concentrate on Mr Everall's argument since it is he who asserts the existence of statutory, alternatively common law provisions, which he submits prohibit the CFR from making a report to the social services without judicial permission.
I start with the relevant statutory provisions. The Criminal Justice and Court Services Act 2000 created the CAFCASS service with effect from 1 April 2001. That Act effected consequential amendments to the Children Act 1989. Section 7 of the latter Act, as amended by the former, provides:
"(1) A court considering any question with respect to a child under this Act may
(a) ask an officer of the Service; or
(b) ask a local authority to arrange for
i) an officer of the local authority
ii) such other person (other than an officer of the Service) as the authority considers appropriate
to report to the court on such matters relating to the welfare of that child as are required to...
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