England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 July 2003

Mr Justice Wall

Introduction

1. This is an application made in care proceedings instituted by a local authority in relation to a number of children, the eldest of whom is 16. The first Respondent (in the care proceedings) is the children's mother. Two of the four fathers involved are parties to the proceedings but were not, I understood, playing an active part in them. The youngest child's father, who is not a party, is currently serving a substantial prison sentence. The other parties to the proceedings are, of course, the children themselves, by their CAFCASS guardian.
2. The case is of a type which presents particular difficulties to a local authority. The children's mother has a history of drug addiction, and a criminal record. She has plainly been involved in a number of unsatisfactory sexual relationships, and the children have been placed at risk On the other side of the coin, however, is the fact that the children all have a strong attachment to her, and a removal from her care would involve the fragmentation of the family into a series of long term foster placements.
3. The local authority has not yet formulated its final care plan, and there is a hearing of the care proceedings fixed for 5 days in the County Court starting on 13 October 2003. However, a particular issue has arisen which the Circuit Judge has transferred to this court for determination. The issue is this: the local authority seeks directions from the court about the extent to which it may disclose to the other parties to the proceedings (and in particular to the mother) a sensitive piece of confidential information which it has received from the police, and which the police do not want disclosed any further. The information in question has been shared with the children's guardian, but with nobody else. In particular, the mother has not been served with the application, and does not know of its existence.

The facts

4. In the period leading up to 11 April 2003, the 5 eldest children had been placed, under interim care orders, with their maternal grandparents. However, it had became apparent that the maternal grandparents could no longer cope, and the local authority resolved to place the children with their mother, keeping the interim care orders in place. The mother had been homeless, but had found accommodation which was suitable for her occupation and the occupation of the children. The move was due to take place on Friday 11 April 2003.
5. Also in April 2003, the social workers in the case received information from the Child Protection and Sexual Crime Unit (CPSCU) of the local police that the police had information suggesting that a black man believed to be a supplier of heroin and crack cocaine was living at the mother's address. The social workers were also provided with certain additional details relating to that information.
6. The social workers were told by the police that they were not at liberty to disclose this information to any family member, or the legal representatives of any party, since to do so would prejudice a large police operation, and could also put an informer's life at risk.
7. Two of the local authority's social workers visited the mother's home in the early evening of 8 April. The door was opened by the mother's niece. However, before the door was opened, the social workers say they saw the shadow of a tall figure move quickly past a window. They then entered the property and saw what they described as "a tall thin black man with spiky hair, standing, apparently trying to hide". He then disappeared into one of the other rooms. The mother then came in from another room. Somewhat surprisingly, the social workers do not appear to have asked the mother who the man was. They told her they were there to look at the property so that they could give information to what they described as "Conference". They asked the mother to show them round the house.
8. The social workers comment that the mother had clearly been preparing for the children to join her, and the house seemed cosy and clean. They had no concerns about the state of the property. However, in the first bedroom they noticed a sleeping bag, and in the third bedroom they saw folded clothes, which they both suspected were a man's clothes. They were too big for the mother. They concluded, accordingly, that they had seen the man referred to in the information given by the police. They do not, however, appear to have challenged the mother about a man living in the house.
9. On the following day, 9 April 2003, the police reaffirmed their instruction that the information was not to be shared with any family member or their legal representatives. On 10 April 2003 one of the social workers made a statement setting out the facts I have already outlined, and on the same day an application was made to the district judge in the county court seeking permission not to disclose the social worker's statement to the other parties. This, I was told, was done to provide time for the local authority to liaise with the CPSCU and decide how to proceed.
10. The upshot of a series of applications to the county court, (none of which was served on the mother or her advisers) was an order by the Circuit Judge, having heard counsel for the local authority and the guardian (with whom the information had been shared with the agreement of the police) and a solicitor for the police, that the application be transferred to the High Court; that the various previous interlocutory orders on the point be not served on or disclosed to the other parties; that various statements, including the statement of the social worker to which I have referred, two reports by the guardian and a statement from a detective sergeant from the local police authority likewise should not be served on or disclosed to the other parties.
11. The local authority accordingly seeks my directions on the dilemma in which it finds itself. In my judgment, this is an entirely appropriate course for the local authority to adopt. It is naturally anxious to promote inter-agency co-operation. It does not want the police to be inhibited from passing on important information relevant to child protection because it has felt obliged to alert the mother and her advisers to the allegation against her. At the same time, it owes child protection duties to the children in the case - it has parental responsibility for them under the interim care order. If it is the case that the mother is living with, or accommodating, a drug dealer, that is plainly a highly material factor in protecting the children and planning for their future.
12. The local authority told me that it felt it had no alternative but to allow the children to return to their mother's care on 11 April 2003. If it had sought to remove them to alternative foster placements it would have had to explain why it was doing so, and the disruption to the children's lives in attempting to arrange a series of foster placements at short notice outweighed, in its judgment, the possible risk of the presence of a drug dealer in the mother's home. I was also told that the children appear currently to be doing well in their mother's care The local authority does not, however, appear to have investigated any further whether or not there is a man (or the man) living in the house. Equally, the guardian's visit to the house on 22 April 2003 was inconclusive.
13. However, an important feature of the case, in my judgment, is that as a condition of the children returning to live with her, the mother signed an agreement with the local authority which contained amongst other provisions, the following:-

3. (The mother) agrees not to associate with drug users either with or without the children present……

5. (The mother) to allow all professional (sic) to visit the house, with planned and unplanned visits.

6. (The mother) agrees to work with all professional (sic) involved with the family.

7. (The mother) agrees not to leave the children with any one that has not been police checked by Social services, or to allow anyone to stay the night without agreement with Social services.

The respective stances of the parties

14. Against this background, the submission made on behalf of the local authority is that I should give it permission to disclose the information to the mother's legal advisers, provided that those advisers are willing not to disclose the information to their client without a further order of the court. This is the practice identified in the speech of Lord Jenkins in Official Solicitor to the Supreme Court v K [1965] AC 201, 226, and recently endorsed by Johnson J in Re C (Disclosure) [1996] 1 FLR 797 and the Court of Appeal in RE M (Disclosure) [1998] 2 FLR 1028. The matter can then be listed before the circuit judge for further consideration and with up to date information from the police.
15. For the police, counsel submitted I should not permit disclosure either to the mother or to her legal advisers - and certainly not in the form in which the information was originally provided. Disclosure in that form, I was told, would enable the informant to be identified. This was, as I understood it, the major concern of the police.
16. A second police objection to disclosure, however, was the likely prejudice to the covert police operation. I was told that, although there was no specific operation planned in relation to the information, it was, nonetheless, relevant to an ongoing investigation which could at any time give rise to a specific operation.
17. Counsel also pointed out that the information given by the police was not evidence, and was not regarded by the police as such it was material, which may nor may not be reliable, which is properly used to shape the nature and range of the police investigation, and as a means of collecting evidence. It had been passed to the local authority as information, not as evidence and was, of course, provided on the basis that it would not be disclosed to any of the parties to the proceedings.
18. The guardian took a pragmatic view. Her solicitor submitted that at some point the mother was going to have to be confronted with the proposition that she had breached her agreement with the local authority and that a man had been living in the house. If it was part of the local authority's case that this man was a drug dealer, then that allegation had to be put to her, and she had to have the opportunity to answer it. In these circumstances, the guardian's solicitor submitted that I should permit disclosure of the essential allegation in a form which the police could live with. There was no real point if having a further hearing in which the legal representatives would seek permission to disclose the information to their client, since the outcome of that application would be inevitable.
19. The guardian's solicitor also indicated that if he was not going to be allowed to discuss the issue with his older clients (the oldest child is over 16 and a half, and the next is 15 and a half) he would himself have to seek directions from the court.

Discussion

20. I was referred to a number of authorities. Somewhat to my surprise, there seems to be no authority directly on the point, although that may be because in a number of the cases the precise nature of the information is not given. However, the principles seem to me reasonably clear. The most helpful case seems to me to be the decision of the Court of Appeal in Re M (Disclosure) [1998] 2 FLR 1028, with its incorporation of the statement of principles set out in the speech of Lord Mustill in Re D (Minors) (Adoption Reports: Confidentiality,) [1996] AC 593 at 615. I was also shown the transcript of an unreported decision of Charles J (Re C (29 November 2001)) in which the confidential information in the hands of the police about which directions were sought was actually contained in a statement by the social worker but emanated from a statement made by the mother. It detailed extensive and on-going criminal activity on the part of the father. This statement identified the danger of harm to her and the risk of the father abducting the child of the family. Charles J identified the stages of any issue relating to disclosure as (1) was the relevant threshold test satisfied? And (2) if it is, are there, nonetheless, grounds for refusing disclosure? He also emphasised the need for a fair trial under Article 6 of the European Convention on Human Rights (the Convention). He directed disclosure of a redacted version of the social worker's statement and he put over the issue of disclosure of a further statement by the mother to another day.
21. In a case such as this, where fundamental and potentially conflicting issues of public policy have to be balanced, it seems to me necessary to go back to first principles. These are care proceedings. The local authority has to establish the threshold criteria under section 31. That is achieved by proving facts on the balance of probabilities which establish significant harm or the likelihood of significant harm. The burden of proving those facts lies on the local authority. All these propositions derive from the decision of the majority of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, and are well known.
22. If the local authority wishes the court to find the threshold criteria established on the basis that the children are suffering significant harm or are likely to suffer significant harm from the presence in the mother's household of a drug dealer, they must prove, on the balance of probabilities, both his presence and the fact that he is a drug dealer. Plainly, the presence of a drug dealer in the house is a highly material factor when considering both the threshold criteria and the children's welfare.
23. The whole weight of authority, now reinforced by Article 6 of the Convention is that non-disclosure of relevant information in care proceedings is the exception rather than the rule, and should only be ordered when the case for it is compelling: - see Re M (Disclosure) (supra).
24. The powerful factors which weigh against disclosure in the instant case are, of course, (1) the need to protect the integrity of the police investigation into serious criminal activities and (2) preserving the safety and the anonymity of the police informant. An additional factor is the risk that disclosure of such information will inhibit the police in providing the local authority with important confidential information in the future.
25. The case plainly requires these factors to be balanced. An important consideration in this exercise, it seems to me, is whether the information given by the police to the local authority can be provided to the mother in a way which minimises the risks set out in paragraph 24.

Conclusion

26. It seems to me an inescapable consequence of the matters canvassed in the paragraphs 22 and 23 that the mother must be informed of the substance of the allegation against her. It does not seem to me that this is a case in which it is appropriate to disclose that essential information to the mother's legal advisers on the basis that they will not disclose it to her. The mother's instructions will have to be taken. She will need to answer the allegation. Her credibility will be in issue. She will have to give evidence about it. None of this can be done without telling her.
27. The material provided by the police is not evidence: it is information. As the police themselves accept, the information may be inaccurate. The evidence collected by the local authority is the statement of the social workers who say they saw the man in the house. These matters must be put to the mother. It would be wholly contrary to Article 6 - and is not suggested by the local authority - that somehow the court should be asked to adjudicate on this issue without giving the mother notice of it. She plainly must be told.
28. What, however, should she be told? In this context, I do not think she has to be given the information in the form in which it was received by the local authority, particularly if in this form, it could, in the wrong hands, identify the informant and put his / her life at risk. What the mother needs to be given is the substance of the allegation - that in April 2003 it received information from the police that a black, male person believed to be a supplier of heroin and crack cocaine was living at her address. In effect this is what is contained in paragraph 12 of the detective sergeant's statement.
29. In this case, the application to limit or refuse disclosure has not been served on the mother's advisers or on any of the other parties. The local authority sought to remedy this defect by inviting me to direct a further hearing before the circuit judge, which would be on notice to the mother's advisers, and at which they would have the opportunity to make representations. Since it seems to me inevitable that the information should be disclosed to the mother, I do not think such an additional hearing necessary. However, it does seem to me important to consider not just what information should be given to the mother, but the extent to which additional information should be given to her solicitors (and possible the solicitors to the other parties) on the basis that it is not passed on to the lay clients.
30. This is where the Official Solicitor v K approach is, I think, helpful. The mother's solicitors are entitled to know that a series of applications have been made to the court, culminating in the current application before me. They will equally be entitled (as will the mother) to know the substance of the information emanating from the police. In my judgment, however, the mother's advisers are entitled to know the wider picture, and to be satisfied that the process has been fair. This means that they are entitled to see the evidence which has been placed before the court, provided that they do not, without the court's permission, pass to their client any information beyond that which I propose to direct she should be given. This restriction applies in particular, of course, to information which the police fear will either compromise their investigation or harm their informant. Thus if the mother's advisers wish to expand the scope of the information which they are entitled to pass on to their client, they will have to make an application to the court.
31. The social worker will need to make a fresh statement, and the Fax from the CPSCU to the local authority (which sets out the information in the form which the police believe would enable the informant to be identified) should be omitted. I will, however, give permission for all the documents generated by this application, which include the two statements of the guardian and the statement of the detective sergeant, to be disclosed to the mother's solicitors, provided they are prepared to undertake that they will not, without the court's permission, disclose to the mother any information beyond that which I am directing should be given to her.
32. I do not know the extent to which the children's fathers are participating in the proceedings. On the material available to me, it does not seem necessary for the information which forms the subject of the application before me to be given to them. However, I do not know enough about the case to make a decision on that point, which I will leave to the circuit judge hearing the case. Once again, however, I can see no real objection in principle to disclosure to them and to their legal advisers on the same basis as disclosure is being made to the mother and her advisers.
33. It should, however, be pointed out to the mother, through her legal advisers, that she herself has a duty to preserve the confidentiality of the information, and that under section 12 of the Administration of Justice Act 1960, any publication of it to a third party is a contempt of court for which she could be punished. This applies in particular to any disclosure by her to the father of the youngest child, who is not a party to the proceedings, who is currently in prison, and with whom the mother is, I am told, in touch.
34. I do not propose to make any directions about the way in which the guardian pursues her further enquiries, or as to the manner in which she discusses the case with the older children. These seem to me exclusively a matter for the exercise of her professional discretion, having taken advice from the children's solicitor.
35. My order, accordingly, will be as follows: -

1. The local authority shall be at liberty to disclose to the mother and to her solicitors that in April 2003 it received information from the police that a black, male person believed to be a supplier of heroin and crack cocaine was living at her address.

2. In addition to the information contained at paragraph 1 of this order, the local authority shall be at liberty to disclose to the mother's solicitors all the documents generated by the applications to the court consequent upon that the receipt by the local authority of that information (including a copy of the judgment given by Wall J on 11 July 2003) provided that the mother's solicitors are willing to undertake not to disclose to their client any part of the information contained in that material (apart from that contained in paragraph 1 of this order) without the permission of the court.

3. The question of the disclosure of the information contained in paragraph 1 of this order and of any of the material identified in paragraph 2 of this order (including the service of a copy of this order) to the other parties to the proceedings shall be reserved to the circuit judge.

36. This judgment and the draft order was circulated to the local authority, the police and the guardian in advance of the judgment being handed down. My understanding is that each is content with the form in which, and the extent to which, disclosure has been ordered. I am extremely grateful to the advocates for their careful and thoughtful work on this case, and in particular I am grateful to the police, not only for passing highly relevant information to the local authority, but for the realistic way in which they have accepted the need for the essential elements of the information to be disclosed. In turn I hope that the form of the disclosure meets their particular anxieties.

General observations

37. This is the second case which I have heard recently, in which sensitive police information has been given to a local authority. The first is In re J (a child) (care proceedings disclosure,), currently only reported in The Times for 16 May 2003 in that case, the information given was that a local authority foster father was going to be/had been arrested under operation ORE. In that case, I was deeply concerned about the local authority's response to the receipt of that information. Because of its sensitivity and a misplaced belief that they could not disclose it to anybody, the local authority was led to mislead both the mother of the child whom they were accommodating and the court.
38. Nothing of that kind has occurred here. On the contrary, the local authority has, very properly, come to the court to ask for guidance. I am, nonetheless concerned lest the local authority has felt itself hampered in its child protection responsibilities by the need to preserve the confidentiality of the information.
39. Inter-agency co-operation is vital to the success of child protection. It is therefore vital that the police give local authorities sensitive information which directly relates to child protection. It is equally vital that local authorities use that information in a way which protects children and does not compromise the activities of the police and the sources of the information. When those principles clash, and the local authority concludes that the confidentiality must be breached it is plainly right - as here - that it comes to the court for guidance.
40. But this does not, in my view, mean that the local authority cannot investigate the issues to which the information relates. It must plainly seek to do so in a way which does not breach the confidentiality of the information, but investigate it must. If it then finds that it cannot complete its investigations without breaching the confidentiality of the information, once again it must come to court as a matter of urgency, and if need be, in the first instance, without notice to any of the parties other than the children's guardian.
41. The nature and extent of the investigation which the local authority carries out when it receives information from the police must be a matter for the local authority on the facts of the particular case, and is not susceptible to general comment. However, in the instant case, I do express some anxiety about the limited nature of the local authority's investigation. It had the perfect pretext to investigate. The mother had signed - or was being asked to sign - a contract under which she promised not to allow anybody to stay in her house overnight without the local authority's consent. The social workers were, therefore, fully entitled to visit and ask her questions designed to ensure that nobody had been staying overnight. They could have asked her about the man they saw, and about the man's clothing they saw without compromising the information they had received. Equally, it seems to me, the guardian was in a position to make the same enquiries, and on the same basis.
42. Quite what further inquiries the local authority and the guardian now make is not, of course, a matter for me. I raise the matter only in order to highlight and emphasise the point that a local authority is not inhibited from further investigation by the receipt of confidential child protection information from the police. What is required, in my judgment, is a structure within the local authority which can properly process the information and decide how it should be acted upon, preferably in consultation with the police.
43. I do not see my decision in the instant case as cutting across inter-disciplinary cooperation. Rather I see it as encouraging methods of harnessing the information obtained through inter-disciplinary co-operation. Such co-operation is a two way process, and courts regularly give the police access to information and documentation obtained for the court in family proceedings. The process must remain two way, and I would be deeply disappointed if anything in this judgment was perceived as jeopardising the need for the police to continue to provide local authorities with sensitive information relevant to child protection.