England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 22nd March 2001

LORD JUSTICE KEENE:

1. This is an appeal from a decision of Maurice Kay J., dated 10 November 2000, whereby an application for a judicial review was dismissed. The case raises an issue about the power of a local authority social services department to communicate to the education department of the authority and to school governors the conclusion which it has reached after enquiries under section 47 of the Children Act 1989 that a head teacher presents a risk of significant harm to children. It should be said at once that this issue was not raised in the same form at first instance, but the basis of challenge underwent some change when the grounds of appeal were formulated.
2. The appellant had been the head teacher since 1995 of a secondary school for boys excluded from mainstream education because of emotional and behavioural problems. The school is a weekly boarding state school, for which the respondent is the responsible local education authority. The judge below concluded that the appellant was a talented, hardworking and innovative educationalist in a difficult area.
3. However, by January 1998 the education department of the respondent had become concerned about the circumstances in which the appellant was taking pupils from the school on his barge. In particular, there was concern that there had been occasions when he had been the only adult present or when there was no written parental permission. The appellant and a senior officer of the education department agreed in January 1998 that there should be no repetition of this and later that month the appellant was told in writing that this should be regarded as an instruction. They agreed that some rules should be worked out for the use of the barge and on 21 April 1998 the applicant wrote to Mr Gibbs of the Education Department confirming his agreement to a protocol "for the use of my barge ... for school journeys". That protocol required parental permission in writing for each journey, a second adult on each trip, and the maintenance of a record at school noting the dates of journeys and the names of pupils and adults. It was subsequently found by a disciplinary panel that on a number of nights in April, May and June 1998 the appellant had failed to comply with these requirements.
4. In July 1998 a recent ex-pupil, 'B', claimed that the appellant had indecently assaulted him on an overnight trip on the barge. A prosecution for indecent assault was brought on the basis of this allegation, but in May 1999 the appellant was acquitted by a jury at Wood Green Crown Court. Following his acquittal, Social Services, in conjunction with police officers and other child protection professionals, returned to their concern, which had begun in July 1998, that the police investigation disclosed other occasions on which the applicant had taken pupils to his barge, sometimes without the presence of any other adult. Apart from B, no one else had made an allegation of sexual impropriety. In common with other local authorities the Council has procedures for the investigation of persons suspected of presenting a risk of significant harm to children. The introduction to the procedures describes them as "new and aiming to provide a clearer framework", adding that "care needs to be taken to ensure that legal advice is sought throughout the process". Reflecting the Children Act 1989, the document states: "the child's welfare shall be Social Services' paramount consideration. Further, in balancing adequate protection for the child and fairness to an adult, the interests of the adult may have to be placed second to the needs of the child." Those provisions are not criticised by the appellant.
5. Two multi-disciplinary strategy meetings took place in June 1999, which examined evidence about boys being taken on the appellant's barge. At the first of those, concern was expressed about a pattern of behaviour on the part of the appellant. Nonetheless, as Maurice Kay J. rightly commented, the minutes of that first meeting indicate an intelligent and unhurried approach, coupled with an express recognition of the need to avoid interference with the disciplinary process which had already been put in train by the Governors of the school. At the second meeting in that month, there was an updating of information. From their different perspectives the various members of the group, consisting of social workers, probation officer and health visitor, all expressed views consistent only with a belief that the appellant posed a risk to children in his care. The meeting recommended that the Director of Education should be informed of this, on the assumption that he would convey this belief to the school governors. On 6 August 1999 the Director of Social Services wrote to the Director of Education to that effect.
6. After some delay, the appellant was also informed of the conclusion of the June meetings and told that the next step was for him to have the opportunity to discuss the matter with members of the strategy meeting. This took the form of a meeting on 4 November 1999, at which the appellant made representations and was also represented by an officer of his trade union.
7. A few days after this, the strategy meeting reconvened to reconsider the matter in light of the appellant's representations. However, the members of the meeting concluded that the original belief expressed about the appellant after the June meetings was correct and should be upheld. The appellant was informed of this by a letter dated 22 November 1999, and the Director of Education was also, it seems, told of the conclusion reached. After further correspondence, there was a further strategy meeting on 22 January 2000, which arrived at the same conclusion.
8. In the meantime and in parallel to the process just described, the disciplinary proceedings against the appellant were taking place. The appellant had initially been suspended, but in September 1999 the Chairman of the Governors set disciplinary proceedings in motion. The appellant was informed of some 11 complaints against him, most of them alleging breaches of the written instructions to him about conditions to be met if pupils were taken on his barge. No allegation of sexual abuse was made. A disciplinary hearing took place on 9 and 10 November 1999, as a result of which most of the complaints were found proved. One of them was held to be gross misconduct and the disciplinary panel recommended that the appellant be dismissed. It should be noted that it is agreed that the letter of 6 August 1999 from the Director of Social Services referring to the appellant as a risk to children was not put before the disciplinary panel, nor referred to in the course of the hearing. The appellant lodged an appeal against the findings of the disciplinary panel, but that was put into suspense when the appellant applied for judicial review. That remained the position at the date of the hearing before Maurice Kay J.
9. Since the decision in the court below, the appeal in the disciplinary proceedings has been heard by a panel of governors, by way of a complete oral rehearing. The appeals panel was, as a result of an undertaking given when permission to appeal to this court was given, told nothing about the investigation and conclusion reached by the social services department. We understand that the decision to recommend dismissal has been upheld.
10. When the application for judicial review came before Maurice Kay J., the appellant was seeking to challenge both the decision of the disciplinary panel of school governors recommending his dismissal and the decision made by the strategy meeting under the auspices of the Social Services department in early November 1999 that there was reasonable cause to suspect that the appellant posed a risk of significant harm to children in his care. The challenge was mounted on a large number of grounds but without success. Permission to appeal to this court was granted only in relation to the decision of the strategy meeting in early November 1999, as communicated by the letter dated 22 November 1999, and only upon one limited ground, namely that the Social Services department had no power to write to the Director of Education and through him to the Chairman of the governors of the school to inform them of their belief that the appellant presented a risk to children.

11. Before this court Mr Patrick Ground, Q.C., has sought to contend that permission to appeal was also granted on the ground that the strategy meeting was not empowered even to come to the view that the appellant posed a risk of significant harm to children or that there was reasonable cause to suspect that he was, whether or not that view was then communicated to any other agency. I granted that permission to appeal and I am clear in my own mind that permission was not granted on this further basis. There is a reasoned judgment dated 18 January 2001 in which permission was granted, and it indicates that the permission was granted solely on the ground that there was no power to communicate such a view to others. Nonetheless, Mr Ground has not been prevented from advancing arguments on the wider basis, and it will be necessary to deal with that additional set of arguments.

12. The main statutory provisions relevant to this case are to be found in the Children Act 1989 ("the Act") and in particular in section 47. Insofar as material for present purposes, that provides:

"(1) Where a local authority -

(a) .............

(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.

(2) ... ...

(3) The enquiries shall, in particular, be directed towards establishing -

(a) whether the authority should make any application to the court, or exercise any of their other powers under this Act [or section 11 of the Crime and Disorder Act 1998 (child safety orders)], with respect to the child;

(b) whether, in the case of a child-

(i) with respect to whom an emergency protection order has been made; and

(ii) who is not in accommodation provided by or on behalf of the authority, it would be in the child's best interests (while an emergency protection order remains in force) for him to be in such accommodation; and

(c) whether, in the case of a child who has been taken into police protection, it would be in the child's best interests for the authority to ask for an application to be made under section 46(7).

(4) ...

(5) Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child's education which should be investigated, they shall consult the relevant local education authority.

(6) ...

(7) If, on the conclusion of any enquiry or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or supervision order they shall -

(a) consider whether it would be appropriate to review the case at a later date; and

(b) if they decide that it would be, determine the date on which that review is to begin.

(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so)."

11. Subsections (9), (10) and (11) make it clear that a local education authority, amongst others, is under a duty to assist the local authority with its enquiries if called upon to do so, unless that would be unreasonable in all the circumstances.
12. Under the Act, a local authority has a general duty to "safeguard and promote the welfare of children within their area who are in need" by providing appropriate services: section 17(1). It is also, by virtue of Schedule 2, para. 4, under a specific duty to take reasonable steps by the provision of such services to prevent children within its area suffering ill-treatment or neglect, and ill-treatment includes sexual abuse (see section 31(9) and section 105(1)). Under Parts IV and V of the Act, such an authority may also apply to a court for a care order, a supervision order, a child assessment order or an emergency protection order, but in each case the power to make such an order is vested in the court, not in the local authority.
13. It is convenient to consider first the contention on behalf of the appellant that a local authority making enquiries in performance of its duty under section 47(1) is not entitled even to form a view that a particular individual presents a risk of significant harm to children in its area, even if it does not communicate that view. The argument appears to be that section 47 is directed towards action to safeguard or promote a child's welfare, rather than towards forming a view about a potential source of harm to that child's welfare. Emphasis is placed on the absence in the section of any express reference to forming a view about such a source of harm.
14. Such an argument seems to me to be entirely without merit and to ignore the realities of the situation. It is implicit in section 47 that the local authority must seek to form a view as a result of its enquiries to whether a child or group of children in its area is suffering or is likely to suffer significant harm. That is a necessary part of the process of deciding whether to seek one of the statutory orders, such as a care order, or to take any other action. Frequently, the conclusion reached on that matter will embrace a view that the harm is coming or is likely to come from a particular individual. In many situations, that individual may be the partner of the child's mother or it may be the child's step-father. The courts are familiar with such situations. There is nothing unlawful or ultra vires about the local authority reaching, as a result of its section 47 enquiries, such a view about the risk to certain children that that individual poses. It may be a necessary step in their process of making decisions about what action to take and may indeed be a particularly important step if there are other children potentially at risk from that individual, beyond the child whose welfare gave rise to the enquiries in the first place. I conclude that the local authority has a power by necessary implication to form such a view. An argument that the view formed by the authority in the present case was irrational and perverse was rejected when permission to appeal was sought and in consequence the rationality of the authority's view forms no part of this appeal.
15. The main thrust of the appellant's case, and the basis on which permission to appeal was granted, is that the local authority has no power to communicate such a conclusion to others, such as the local education authority and the Chairman of the school governors. It is emphasised that such communication could have serious consequences for a person such as the appellant in terms of his employment. On the facts of the present case, it is not easy to see how such consequences have resulted, since the decisions by the local education authority about the appellant's continued employment by them are no longer the subject of this appeal, and in any event those decisions by the disciplinary panel and the appeal panel were made without knowledge of the view formed by the strategy meetings held by the Social Services department. It might be thought, therefore, that the present appeal is somewhat academic. Nonetheless, Mr Ground stresses that the conclusion reached by those meetings is of very great importance to the appellant, as one can well understand, and that the communication of that view to any person or agency beyond the Social Services department has the potential to cause him harm. I can see that such communication does raise issues of principle which merit consideration.
16. The principal submission made on behalf of the appellant is that section 47 of the Act confers no power, express or implied on the local authority to communicate a view, which it has formed, about an individual to another agency or organisation, even within its own area. Mr Ground argues that, had Parliament intended there to be such a power, it would have made express provision for it. He draws attention to the wording of section 47(3), which indicates that enquiries under section 47 "shall, in particular, be directed towards establishing" whether certain specified action should be taken. It is conceded that the section envisages that such action may consist of something other than making an application to a court, because section 47(3)(a) clearly anticipates that the authority may, as a result of their enquiries, "exercise any of their other powers under this Act". But it is submitted that section 47(8), which requires an authority to take an action when they have concluded that they should do so, does not enlarge the authority's powers to act, since the subsection expressly states:

"so far as it is both within their power and reasonably practicable for them to do so."

17. Consequently any power to take action as a result of section 47 enquiries must be found elsewhere and yet nowhere in the Act is a local authority given power to communicate its views, formed after such enquiries, to any other agency. Mr Ground reminds us that local authorities only have such powers as are expressly or implicitly granted by statute: Hazell -v- Hammersmith and Fulham LBC [1992] 2 A.C.1.
18. It is conceded on behalf of the appellant that the authority can communicate with the police, and it may be thought that that is a necessary concession since the police for the area were represented at the multi-disciplinary meetings about which complaint is made. It is also recognised that a local authority is in appropriate cases required to consult the local education authority (section 47(5)) and may consult other bodies (section 47(9) and (11)). But Mr Ground contends that such powers only enable the authority to consult as part of their enquiries and does not empower them to communicate their decision to such a body, not even when the education authority is simply another department of the same County Council as in the present case.
19. Reliance is placed on the Court of Appeal decision in Re L and Re V (minors) (sexual abuse: disclosure) [1999] 1 FCR 308, where the court in an exercise of its discretion in care proceedings under section 31 of the Act refused to permit disclosure of the court's findings about sexual abuse committed by two individuals to those unconnected with the family proceedings in which those findings were made. In the one case, the lower court had allowed disclosure to another local authority where the man now lived, in the other case it had allowed disclosure to the area youth football league, since the man in question coached junior football teams. Butler-Sloss L.J. emphasised in the Court of Appeal that:

"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."

That reflected section 12(1) of the Administration of Justice Act 1960. She went on to say that:

"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."

20. Mr Ground places great weight on part of para. 16 of Butler-Sloss L.J.'s judgment:

"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."

21. Finally, the appellant draws attention to the Protection of Children Act 1999, with its provisions for a list of individuals unsuitable to work with children to be kept by the Secretary of State. That Act gives to any such individual the right of appeal to a tribunal, in contrast (it is said) to the situation in the present case where no right of appeal exists against the views formed and communicated by the strategy meetings.
22. In response to that last point, Mr Brennan on behalf of the respondent points to the ability of the courts to control such local authority actions by way of judicial review. If the decision that a particular individual constitutes a risk to children is a perverse one or reflects irrelevant matters, it can be quashed, as it can if there is some breach of natural justice, such as not affording the individual an opportunity to explain his conduct. Likewise, the extent of any communication can be controlled by the courts, as was shown in R -v- Local Authority and Police Authority in the Midlands ex parte LM. [2000] 1 FLR 612. There Dyson J. held that both the police and social services have the power to disclose to a third party allegations of sexual abuse of children if they genuinely and reasonably believe that it is desirable to do so to protect children. But he emphasised that this power was not without restraint. Relying on R -v- Chief Constable of North Wales Police, ex parte Thorpe [1999] QB 396, Dyson J. held that disclosure should only be made if there was a "pressing need" and should be the exception, not the rule. That required a careful examination by the authority of the merits of the individual case. The court went on there to list certain factors likely to be relevant, and commented that:

"It may be easier to make out a pressing need for disclosure to one person or group of persons than another". (page 622D)

In the circumstances of that particular case, the court held that the decision to disclose was irrational and should be quashed.

23. The approach described in ex parte LM is one commended by the respondent in the present case. Mr Brennan submits that it enables the court to intervene if disclosure is excessive and unwarranted.
24. Reliance is placed on ex parte LM for the existence of a power in the local authority to make such disclosure, as well as on the decision in R -v- Devon County Council, ex parte L [1991] 2 FLR 541. In that latter case, the High Court held that social workers were under a duty to inform two mothers and a grandmother of their belief that a man who, in turn, lived with each of them was an abuser of children. That duty was subject to the social workers honestly believing on reasonable grounds that the man was an abuser. The court based the duty upon the general duty of a local authority to promote the welfare of children as contained at that time in section 1 of the Child Care Act 1980, although it observed that the new Children Act 1989, not then in force, contained the same policy. Clearly, argues Mr Brennan, the existence of such a duty implies that there is an equivalent power. He relies on the general duty under section 17(1) of the Act to safeguard and promote the welfare of children within their area, and submits that it would be absurd if there was no power for an authority to take any action short of applying for the "nuclear weapon" of a care order or one of the other statutory orders.
25. This appeal raises yet again the difficult problem where an individual has not been convicted of any offence involving children - indeed, where as here he may have been acquitted in the criminal courts of such an offence - but where the local authority responsible for the welfare of children in its area honestly and reasonably forms the view that he presents a risk to a child or a group of children. The individual is, as here, likely to feel aggrieved if the authority communicates its view to others, even on a limited basis. Yet if it does not do so, the risk to children which has been identified may materialise, with serious consequences.
26. For my part, I do not derive great assistance from the judgments in Re L, because of the very different situation with which that case was dealing. It was concerned with the exercise of the court's own discretion as to the disclosure of findings made in the course of family proceedings, which are treated as confidential without the leave of the court. The court had to balance various factors. That is why the leading judgment of Butler-Sloss L.J. is concerned with whether there was a duty under section 17 or section 47 of the Act to disclose, not with whether there was a power. Significantly, at para. 11 of her judgment, Butler-Sloss L.J. stated:

"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 inquiries from another authority who are conducting inquiries about a possible abuser. Nothing in this judgment is intended to inhibit the necessary exchange of relevant information between agencies."

That last comment reflects the basic approach to be found both in the Act and in the policy guidance "Working Together Under the Children Act 1989", namely that there is a need for co-operation and consultation between all the different agencies who may be involved in the welfare of children in an area, in short a multi-disciplinary approach. One can see this throughout the Act. In Part III of the Act, section 27 in effect requires co-operation between various types of authority, including the local education authority, in helping in the exercise of Part III functions. Section 47 itself, by subsection (5), requires the local authority to consult with the local education authority where it appears to them that:

"there are matters connected with the child's education which should be investigated."

Section 47(9) adopts a similar approach in respect of various other authorities and public bodies. Section 47(3)(c) envisages that the authority may decide, as a result of its enquiries, to ask the police to apply for an emergency protection order under section 46(7). The whole emphasis of the Act is on inter-agency co-operation. That accords with the policy approach set out in "Working Together", paras. 4.18 and 5.13.1. As a matter of principle, therefore, it would be surprising if the law required some form of "Chinese walls" to be maintained by denying a local authority any power to pass on its views as to an existing risk from an individual to a child or group of children.

27. Mr Ground conceded that the social services department could communicate with the police if it was thought that a criminal offence might be committed. But what about disclosing their anxieties to the mother of the child, when those anxieties concerned another member of the household, whether her partner or an older sibling? If the appellant's contentions are correct, the authority has no power to do that. The illustration given in argument by Mr Brennan, of a complaint by a teenager at a residential school of abuse by another pupil with whom he or she shared a room, is instructive. On the appellant's approach, the social services department would be unable to suggest to the head-teacher that the two pupils should sleep in separate rooms. Not only are these extremely surprising results, but they run counter to the decisions in ex parte LM and R -v- Devon County Council, ex parte L.
28. The appellant's approach could indeed create unfairness to an individual suspected initially of abuse. There is the clear statutory power whereby a local authority can consult a local education authority under section 47: see subsection (5). It may often be the case that in the course of such consultation the authority would have to reveal its suspicions as to the source of the alleged risk to the child, thereby casting suspicion on a particular individual. But if the appellant is right, if the authority at the end of its investigation concludes that its suspicions were unfounded, it nonetheless has no power to communicate that conclusion to the local education authority. That cannot be right. Consultation cannot be a one-way street, and the local authority must be entitled in appropriate cases to inform the local education authority of its conclusions, whether adverse to or in favour of a person suspected initially of abuse. The same situation must obtain if another local authority is consulted under section 47(12).
29. I accept that a local authority can only act by way of its statutory powers. It must, however, be borne in mind that not every action by such an authority requires an express statutory provision. There is no express legislative provision empowering a local authority to write a letter, to provide a coffee machine for its staff or to do any one of a myriad things which are commonplace in local government offices. Many of these will be authorised by the general power conferred by section 111(1) of the Local Government Act 1972 to do anything:

"which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

In the present case, however, I prefer to find the power to communicate a conclusion, formed after a section 47 investigation, by way of implication from the responsibilities conferred on local authorities for the welfare and protection of children. Like Dyson J. in ex parte LM, I regard the general duty under section 17 of the Act, along with section 27, section 47 and Schedule 2, para. 4 as giving rise to a power to communicate such a belief where the authority genuinely and reasonably believes that such a step is necessary to protect children in its area from the risk of sexual abuse, but where it does not need to go so far as to seek a court order. I also regard the Devon County Council case as rightly decided. Of course, such a power could itself be misused, but adequate controls exist through judicial review to ensure that the belief itself is not irrational and that the extent of disclosure is no more than is required for the protection of a child or children. As Lord Woolf, M.R. said in ex parte Thorpe:

"disclosure should only be made when there is a pressing need for that disclosure."

The existence of such a need is not in issue on this appeal, which is solely concerned with the existence or not of the power to disclose. I am in no doubt that such a power is possessed by local authorities under the Children Act 1989.

30. At one point in the argument, Mr Ground asked us to treat this appeal as relating also to the further decision by the meeting on 28 January 2000, which confirmed the earlier decision of November 1999 that the appellant was a risk to children in his care. That further decision was not the subject-matter of the application for judicial review, although clearly our decision on the present appeal will be relevant to any such application which may be brought in the future to challenge the 28 January decision. Apparently there may be a number of grounds to be advanced for such a challenge. They have not been the subject of consideration at first instance and this court is unable to deal with them. I say no more about that particular topic.
31. For the reasons set out in this judgment, I would dismiss this appeal.

MR JUSTICE LIGHTMAN:

32. Section 47 of the Children Act 1989 provides that where a local authority has reasonable cause to suspect that a child is suffering or likely to suffer significant harm, the authority shall make or cause to be made such inquiries as it considers necessary as to enable it to decide whether it should take any action to safeguard or promote the child's welfare.
33. The authority has accordingly to reach a decision whether or not to take any action ("the Action Decision"). The Action Decision may be (or include) a decision to write a letter e.g. giving a warning to the addressee or advising him that particular measures be taken. Alternatively the Action Decision may not include any decision to write such a letter, but the authority may decide at the same time or a later date to write a letter relating to the Action Decision informing the addressee of the Action Decision or some part of it. In the former case the Action Decision, and in the latter case the decision to write the letter, are subject to judicial review. The authority must properly consider whether the writing of the letter, having regard in particular to the object sought to be achieved and the consequences for all parties affected, is a proper and proportionate course to be taken. But in my judgment for the reasons given by Keene L.J. it is clear beyond question that in both cases the authority has the necessary power to write the letter.

LORD JUSTICE ROBERT WALKER:

34. I agree.
ORDER: Appeal dismissed with costs; permission to appeal refused; undertaking concerning the opinion formed by social services is now spent. (Order does not form part of approved Judgment)