England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 98/5215/2

IN THE COURT OF APPEAL (CIVIL DIVISION) FC3 97/7112/2

ON APPEAL FROM THE HIGH COURT OF JUSTICE FAFMI 97/1694/2

FAMILY DIVISION CCFMI 97/1352/2

(MR JUSTICE BENNETT ) Re L & W (Minors)

AND

ON APPEAL FROM THE BOURNEMOUTH COUNTY COURT

(HER HONOUR JUDGE BONVIN ) Re V (Minors)

Royal Courts of Justice

Strand, London WC2

Thursday, 8 October 1998

B e f o r e:

LADY JUSTICE BUTLER-SLOSS

LORD JUSTICE HUTCHISON

LORD JUSTICE CHADWICK

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L & W (MINORS)

AND

V (MINORS)

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(Handed Down Transcript of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR ALLAN LEVY QC & MR A CALLAWAY (Instructed by Hill Lawson, Surrey, KT17 1RX) appeared on behalf of the Appellant in L & W (Minors)

MISS JUDITH PARKER QC & MISS CHARLOTTE FRIEDMAN (Instructed by Mrs Frampton, Hampton Legal Practice, Bournemouth) appeared on behalf of the Appellants in V (Minors)

MR D BEDDINGFIELD (Instructed by Croydon Borough Council) appeared on behalf of the Respondent in L & W (Minors)

R BELBEN & (MISS N BARNETT - re 8 October 1998) (Instructed by Bournemouth Borough Council) appeared on behalf of the Respondent in V (Minors)

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LADY JUSTICE BUTLER-SLOSS:

1. We have heard together two unrelated appeals which raise similar issues about disclosure of information by the Court to those unconnected with the family proceedings in which the information became available. In each case a local authority sought leave to provide information, in one case to another local authority and in the other to the area Youth Football League, (the League), about findings of sexual impropriety made by the judge against the appellant in proceedings under section 31 of the Children Act 1989, (the Children Act).

2. The background facts.

The L case.

In this appeal, the father, Mr L, is 36 and has 5 children and one step-child. In 1995 he was charged with attempted rape of the step-daughter and indecent assault upon the other 5 children. In August 1996 he was acquitted of all charges. In care proceedings in respect of one child, on the 4th July 1997 Bennett J found that the father had sexually abused three children in his care, two of his children and the step-daughter. The judge held that the threshold criteria under section 31 were met and that Mr L posed a significant risk to the three youngest children. During the hearing Mr L was given leave by the judge to write down his address. He had moved away from the London area to an

undisclosed address. At the conclusion of the judgment the local authority asked the judge to give leave for the address to be disclosed to them in order that they might alert the local authority of the area to which Mr L has moved of his presence and the danger he might pose to children in the new area. The judge had found that he posed a considerable threat to the children of single female adults with whom he might cohabit but not to children generally. In a second judgment of the 31st July 1997 the judge directed that the address of Mr L and the substance of the findings of sexual abuse be disclosed to the local authority in whose area Mr L then lived but not to the police or to any other local authority without the leave of the court. His judgment is reported in Re L (Minors)(sexual abuse:disclosure) [1998] 1 FCR 258. Mr L appealed to this Court against the granting of leave to disclose his address to the local authority.

3. The V case.

In this appeal, the parents of four sons separated in 1987 and divorced in 1996. The children stayed with their mother. The two elder boys are now over 18 but D is 15 and C is 14. In 1994 the mother formed an association with a Mr W. He was a keen footballer and coached junior football teams at the local club where both D and C played. Allegations were made about Mr W´s inappropriate behaviour with young boys including C. The father of D and C became concerned and the local authority became involved and instituted proceedings under section 31 of the Children Act. At the end of a 17 day hearing before Her Honour Judge Bonvin, on the 2nd September 1997, the judge made findings of sexual impropriety, principally an indecent assault in 1989 on an 8 year old boy, characterised by the judge as ´relatively minor´, and more recently ´overwhelming evidence of an unusual and unhealthy relationship with C´. The judge held that Mr W posed a risk of significant harm both to D and C unless some protective measures were kept in place. Those measures included a prohibited steps order and retaining the boys´ names on the Child Protection Register.

4. The judge was then asked by the local authority to give permission for a letter to be sent to the local football club and to the League which, it appears, regulates the clubs affiliated to it. The League had two years before informed the local club that Mr W was not acceptable as manager of the team in which C played. The judge was not however given any further information save that the local club circumvented that instruction and Mr W continued to be involved in the junior teams. The judge in a second judgment on the 23rd September 1997 approved a letter to be sent to the League informing them of her decision and a short summary of the behaviour found proved. Mr W appealed to this court against the order to send the letter to the League.

5. It has been the practice for many years for information obtained in wardship and other family proceedings to be treated as confidential and not to be disclosed outside the proceedings without leave of the court. The Administration of Justice Act 1960, section 12(1), provides that proceedings relating to the inherent jurisdiction of the High Court with respect to minors, brought under the Children Act or otherwise relating wholly or mainly to the maintenance or upbringing of a minor are protected from publication of information. The Children Act, Section 98(2), protects witnesses giving evidence in court from self-incrimination in the interests of frankness. The Family Proceedings Rules 1991, (the Rules), provide for confidentiality of documents in the proceedings which may not be disclosed other than to the parties and other specified persons without the leave of the judge or district judge, see rule 4.23. Transcripts of proceedings and judgments are protected by rule 10.15. The address of a party or witness who seeks not to disclose it other than to the court is specifically protected by rule 10.21.

6. The question as to when documents protected by the Rules may be disclosed has been considered by this Court on a number of occasions in recent years, principally in connection with requests from the police in order to help their investigations.

Sir Stephen Brown P in re D (Minors) (Wardship Disclosure) [1994] 1 FLR 346 said at page 350:-

"The principle is quite clear, and that is that the judge hearing an application for leave to disclose such documents must in the exercise of his discretion conduct a balancing exercise - that is to say, he has to balance the importance of confidentiality in wardship proceedings and the frankness which it engenders in those who give evidence to the wardship court against the public interest in seeing the ends of justice are properly served. In relation to criminal proceedings it is clear that the wardship court should not, as it were, seek to erect a barrier which would prejudice the operation of another branch of the judicature."

In re L (Police Investigation: Privilege) [1995] 1 FLR 999, Sir Thomas Bingham MR said at page 1019:-

"The authorities show that many factors are potentially relevant, depending on the facts, to the exercise of discretion."

The Master of the Rolls considered the effect of disclosure upon the child the subject of the proceedings and said that, if disclosure would not adversely affect his welfare, other considerations were likely to carry the day. He accepted as potent reasons for disclosure, even if adverse to the child´s welfare, the public interest in the administration of justice and the right of a defendant to defend himself in criminal proceedings. He concluded:-

"If, on the other hand, it could be shown that disclosure would for some reason be unfair or oppressive to a party to the wardship or Children Act proceedings, that would weigh against an order for disclosure."

7. This Court in Re C [1997] Fam.76 set out a list of guidelines to which a court should have regard in exercising its discretion whether to order disclosure. In that case the police applied for medical reports and a transcript of evidence relating to the death of a baby, the sister of the child the subject of the court proceedings. During the care proceedings the father had admitted causing the injuries to the dead baby. The Court held that all the relevant material should be disclosed to the police.

8. From the guidelines in re C and the earlier decisions it is clear that the court in family proceedings is likely to disclose relevant information to the police or to a defendant to criminal proceedings unless there are powerful reasons to the contrary. Disclosure was also given to the General Medical Council in A County Council v W [1997] 1 FLR 574 where a finding of sexual abuse had been made against a registered medical practitioner in care proceedings and to the probation service who were the employers´ of the father in re R (disclosure) [1998] 1 FLR 433. In each of those cases there were, or were about to be further investigations.

9. Swinton Thomas LJ prefaced the guidelines in re C by saying at page 85 of his judgment:-

"In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case."

I turn now to their relevance to the facts of the present appeals. The second factor, that is to say:-

"The welfare and interests of other children generally."

is a relevant consideration, in that each of the appellants has been identified by the trial judge as a danger to children beyond the children in the relevant proceedings. Mr L has left the area, one assumes, and the L children are protected by court orders. Mr W has not left the area but the V children are also protected by court orders. The welfare of the children in the Children Act proceedings seems therefore to me to be unaffected by disclosure and is a broadly neutral factor. None of the other factors which I summarise below appears to be significant on the facts of either appeal. There are no pending investigations either by the police or any other agency in respect of which the information sought to be disclosed might assist. There is no immediate need for co-operation between agencies. The public interest in the administration of justice and in the prosecution of crime does not arise. The balance would seem to fall clearly against disclosure of the information unless it should be made on broader grounds than those envisaged by the decisions to which I have so far referred.

10. The local authorities, however raise further arguments in support of disclosure in each case. In the L case, the local authority has argued that it has a duty under the Children Act to inform other local authorities of relevant information about sex abusers. Local authorities have statutory duties to safeguard the welfare of children in their area. The Children Act, Section 17, requires the local authority as part of their general duty:-

"(1) to safeguard and promote the welfare of children within their area who are in need;"

Section 47 sets out the duty to investigate:-

"(1) Where a local authority -

(a) are informed that a child who lives, or is found, in their area -

(i) is the subject of an emergency protection order; or

(ii) is in police protection; or

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child´s welfare."

11. There will be occasions when one local authority will have the duty to pass on information about abuse and abusers to other local authorities. An example would be when children from one area who are at risk move to another local authority area. The local authority may also need to respond to enquiries from another authority who are conducting enquiries about a possible abuser. Nothing in this judgment is intended to inhibit the necessary exchange of relevant information between agencies. Further in the case of those convicted of specified criminal offences or who have been cautioned there are now in place stringent requirements. Local authorities are however creatures of statute and neither section 17 nor section 47 places upon a local authority the general duty to inform other areas of the movement of those found guilty of sexual abuse in care or other family proceedings. Neither section 17 nor section 47 in my judgment supports the case for disclosure on the facts of either of these appeals.

12. Both respondent local authorities submitted that the findings of sexual abuse made by Bennett J and by Judge Bonvin ought to be treated as analogous to specified convictions or cautions and that the regulations and the guidance, inter alia, from the Home Office, Department of Health and Department for Education should be extended to abusers, (so found), in Children Act proceedings. The Sex Offenders Act 1997, (the 1997 Act) requires convicted child sex abusers to give their names and addresses to the police and allows for a national register of such abusers to be kept. Notification applies to those cautioned as well as convicted of offences listed in Schedule 1 to the 1997 Act. In addition to the 1997 Act, a series of regulations between 1991 and 1997 have considerably tightened up the rules in respect of those entrusted with the care of children, whether in children´s homes, foster care, child minding, teaching or others employed in one capacity or another to look after children. The Children (Protection from Offenders)(Miscellaneous Amendments) Regulations 1997 has amended earlier regulations, (the Foster Placement (Children)Regulations 1991, the Adoption Agencies Regulations 1983, the Children´s Homes Regulations 1991, the Disqualification for Caring for Children Regulations 1991), so as to bar anyone with a specified conviction or caution from fostering, adopting or from becoming a child minder or other carer.

13. Our attention was drawn by Counsel to the Home Office Circular (HOC 39/1997) giving guidance in respect of the Sex Offenders Act. Although the Circular envisages the exchange of information between agencies charged with the duty to protect children at risk of abuse, it is in the context of convicted abusers or those cautioned. We also looked at the guidance on 1997 Miscellaneous Amendment Regulations ( No. LAC (97) 17) which make it clear that the purpose of the Regulations is to prohibit the approval by adoption agencies, local authorities or voluntary organisations of anyone convicted of or cautioned for a specified offence or anyone living in the same household. In addition there are further checks available by consulting the police or the Department of Health Consultancy Index. But all these inquiries are in the context of checking potential employed carers or prospective adopters. It does not apply to the general public. Earlier circulars from the DOH, the DFE and the Home Office to which we were also referred do not seem to me to support the local authority´s submissions.

14. The inter-agency co-operation which is an important feature of the DOH guidance in Working Together (1991) provides for disclosure of information where it is necessary. It does not provide for general provision of information about abusers within Children Act proceedings. Both in the circulars provided by the Departments and in the guidance in Working Together the importance of the confidentiality of the information is also emphasised.

15. The only regulations, to which we had our attention drawn, which rely upon findings in Children Act proceedings are the Disqualification for Caring for Children Regulations 1991, (as amended by the 1997 Regulations). A private foster parent or a child minder is disqualified from so acting if he is the parent of a child or the carer of a child removed under a section 31(1)(a) care order, see regulation 2(a) and (b). That requirement has not however,to my knowledge, been extended to other carers and does not apply to the general public. Its statutory purpose cannot in my view be extended by the courts to private individuals who are not within its statutory framework. That conclusion applies with even greater force to any proposed extension of the 1997 Act or any of the other regulations(amended in 1997). There are no regulations requiring the disclosure of that information either to the police or to other agencies. There is no ground upon which this Court could, by analogy with existing legislation, give leave to disclose information about Mr L or Mr W to outsiders. This is a matter for Parliament and not for the courts.

16. Are there other reasons which should require a court, in the exercise of its discretion, to give leave to disclose information about Mr L or Mr W?

Bennett J said of Mr L in his judgment at page 269:-

"I do not know whether there are any children living at (the father´s) address, nor whether there are children who come to that address for contact with other adults living there, but if there are, in my judgment, they are at risk. Such children should not be put at risk. They should be protected and safeguarded."

I have great sympathy with the judge´s wish to protect other children who may be at risk from a man whom he has found to be an abuser. But it is important to recognise that Parliament has not thought it appropriate to include cases of this nature - where the man has been neither cautioned nor convicted of any sexual abuse, a fortiori where he has been acquitted of offences against the very children with which the family court was directly concerned - within the statutory and regulatory framework under which there is now widespread dissemination of information specifically designed for the protection of children. That omission cannot be regarded as inadvertent. It must reflect a conscious decision that disclosure of information should be regarded as exceptional in cases of this nature. In

R v Chief Constable of the North Wales Police and others, ex parte AB and CD [1998] 3 WLR 57, the applicants moved for judicial review of the decision of the police to disclose to a caravan park owner that two convicted child sex offenders were occupying a caravan on his site. This Court refused to grant relief and held that the police were entitled for the protection of the public, particularly children, to disclose the information. Lord Woolf MR in a judgment of the court said at page 68:-

"It must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. Disclosure should only be made when there is a pressing need for that disclosure."

Although the facts in the North Wales Police case are entirely different from those in the present appeals, the caution urged by the Master of the Rolls that ´disclosure should only be made when there is a pressing need´ is of general application and supports my conclusion as to non-disclosure. As the law stands at present it is inappropriate to direct disclosure of information about findings of abuse in Children Act cases unless the application to disclose comes within the broad principles set out in re C.

17. Mr Levy QC for Mr L also relied upon the effect of disclosure on Mr L and submitted that it would be unfair and oppressive to do so in his case. That is a relevant consideration as the Master of the Rolls indicated in re L (supra). In Mr L´s case it carries, in my view, considerable weight. One has to consider what a local authority is to do with the information. The police are not to be told.If a social worker investigates and if Mr L knew he was being investigated he would be likely to move and perhaps ´go to ground´. It would be difficult to keep the information truly confidential if it is to be of use and its use might well be oppressive, unless a child was actually at risk.

18. Miss Parker QC advanced the same argument on behalf of Mr W. In this case, the findings are less serious but the disclosure is to members of the public in their voluntary role as members of the governing body of the area football League. The judge felt that the local authority should have the opportunity to give accurate information to the League which was sufficiently removed from the local club that it would not embarrass C when he played there. She also felt that warnings could be given to other clubs in the League. The recipients of the information, which has been set out in a somewhat unsuitable letter, initially the League, would have the problem of how to deal with the information. For it to be effective they would presumably have to circulate some information to all clubs with which Mr W might be associated. Indeed the judge intended that result. Almost inevitably it would have to be passed on probably to numerous people. In the present case, there is already gossip, and we know the local club would not respond to the previous direction of the League with regard to Mr W. If the dissemination is to be effective and possibly even if it is not effective, the information provided is likely to be oppressive and consequently unjust to Mr W. Those considerations illustrate the problem for the court when faced with an application to authorise disclosure of information in a case where the risk cannot be related to a particular child or children - because it is not known whether any, or which, children are actually at risk from time to time. The court is asked to authorise disclosure of information to a particular authority or other body; but the court cannot anticipate in detail what use will need to be made of the information by that authority or body in the circumstances as they develop. In cases within the 1997 Act, access to the national register and the use to which information on that register can be put are the subject of extensive prescription and guidance; but, where that framework is not available, the court is, in effect, invited to impose an ad hoc framework of its own. That is a course for which the court is unlikely to be fitted.

19. For all these reasons, in my judgment both Bennett J and Judge Bonvin erred in their approach to the exercise of discretion. The balance comes down firmly in favour of non-disclosure in each case. I would allow both appeals and set aside the leave to disclose Mr L´s address to the local authority and the leave to disclose to the local authority of the area in which Mr L now lives the findings in the Children Act proceedings. I would set aside the leave in the V case to the local authority to send the letter approved by the judge to the area Youth Football League.

LORD JUSTICE HUTCHISON:

I agree.

LORD JUSTICE CHADWICK:

I also agree.

Order: Appeals allowed; leave set aside to disclose the address of the particular person involved in each appeal; costs to follow the event: the Legal Aid Board to get their costs from the local authorities; legal aid taxation; application by Mr Beddingfield for leave to appeal to the House of Lords refused. (This order does not form part of the approved judgment)