England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/10/2010

Sir Nicholas Wall P:

1. At the suggestion of the Family Division Liaison Judge, a point under the Revised Private Law Programme [2010] 2 FCR 496 (the PLP) arising in proceedings under the Children Act 1989 (the Act) being heard by a District Judge in the county court, has been listed before me for resolution. As it transpires, what looked at first blush like a difficult and sensitive issue; (a) has been resolved without any need for me to adjudicate; and (b) turns out to have been based on a misunderstanding. It nonetheless occurs to me that, given the importance of the smooth running of the PLP (and in particular the great value of the First Hearing Disputes Resolution Appointment (the FHDRA) it may assist the profession if I give a short judgment on the point, explaining how the issue arose and how it has been resolved.
2. I see no point in identifying the parties to the proceedings, or its location or any members of the judiciary or the Children and Families Court Advisory and Support Service (CAFCASS) involved. I do, however, wish to express my gratitude to the lawyers in the case (who can be named) and in particular to Mr. Michael Hinchliffe, Principal Lawyer with CAFCASS whose clear and candid explanation of events has been invaluable. Furthermore, as this short judgment will make clear, no possible criticism can be levelled at the district judge either for the anxieties which he expressed or for the fact that the matter was transferred to me.
3. As presented to me, the issue was in the following terms: -

(a) whether the report prepared by a CAFCASS Officer (whom I will call "CO1") dated 3 August 2010 pursuant to a court order that a report should be prepared should be disclosed to the court and the parties to the proceedings; and

(b) whether the court and the parties should be informed, and if so how, whether any substantive changes have been effected to the said report other than by (CO1) and/or by (CO1) at the instruction or request of any other person.

The facts

4. The father of a female child now aged 2, who had a relationship with the child's mother for some four to five years, has issued proceedings in the county court seeking contact with and parental responsibility for the child. It is right to say that in the period leading up to the issue of the proceedings the father had become increasingly concerned about the manner in which the mother was caring for the child. He also has a residence order in relation to two older children by a different relationship, although those children are not currently the subject of any proceedings.
5. By the time of the FHDRA on 15 July 2010, however, the father's anxieties about the mother's care of the child had been assuaged. He had been having regular contact with the child, and he and the child's mother had reached agreement over residence and contact. Despite this, and, in accordance with the PLP, quite properly, the district judge hearing the FHDRA (whom I will call DJA) adjourned it to the first available date after 14 days, directed that the application be heard "in the CAFCASS list" and ordered CAFCASS to prepare a risk assessment report for the adjourned hearing.
6. The adjourned hearing took place before a different district judge (DJB) on 2 September. DJB has helpfully provided a note "to the parties and the court". In that note he says (and I have no reason to doubt it) that he was told on 2 September 2010 by the duty CAFCASS Officer that the risk assessment ordered by DJA had been filed. However, there was no copy on the court file, and the CAFCASS Officer could not produce a copy. DJB accordingly further adjourned the case to 9 September 2010 and directed that the CAFCASS officer who he was told had prepared the report (whom I will call "CO2") should attend.
7. On 9 September 2010 a risk assessment by CO2 was produced by the CAFCASS Officer on duty, but CO2 herself was not present. It transpired that CO2 had only been allocated the case in early September, and in the risk assessment by CO2 there is a reference to an earlier risk assessment dated 3 August 2010, which had been drafted by another CAFCASS Officer (CO1) who was known to and highly regarded by the district judge. The risk assessment by CO2 contains the following paragraphs: -

"On 3 August 2010 a Risk Assessment had been drafted by (CO1). Significant concerned had been identified , but key information ….… had yet to be received. Given that the report if filed at this stage would have been incomplete and taking into consideration the potential to increase risk upon filing the report, the decision had been taken not to file the report until it could be completed in full with (CO1) …. available to give a verbal report to the court"

On 2 September 2010 at the Directions Hearing, the CAFCASS Duty Officer had been misinformed as to the status of the Risk Assessment and subsequently mistakenly informed the court that the Risk Assessment had been filed on 4 August 2010. The court, not having had sight of the report, had ordered that I (CO2) attend the following hearing scheduled for 9 September 2010."

8. At the hearing on 9 September 2010, DJB asked to see the risk assessment which he believed had been undertaken by CO1. After a short adjournment for instructions to be taken, DJB, most unfortunately, was then informed that CO1's risk assessment had not been filed because it did not meet "quality assurance". DJB records that CAFCASS was only prepared to show him what he describes as "an edited version of the original report".
9. In these circumstances, unsurprisingly, DJB came to the conclusion that CAFCASS was withholding information from the court and inferred, again quite reasonably, that CO2 must have reached a different conclusion from CO1. CO1, moreover, told DJB that the assessment she had undertaken was in the form she always used, notwithstanding the statement by the CAFCASS manager that it did not meet "quality assurance standards".
10. DJB was thus of the view that CO1's risk assessment should be disclosed to the court in an un-redacted form. He gave four powerful reasons for reaching that view. They were: -

(1) that CAFCASS should hold no secrets from the court;

(2) that CO1 had completed a risk assessment which should be disclosed under the PLP;

(3) that CO2 appeared to have placed reliance on CO1's report in compiling her own report; and

(4) that if there was a material difference between CO1's report and CO2's report it would have occurred as a result of the actions of a manager who would not be required to justify the evidence at court.

DJB then concludes his note by asking the rhetorical question: can any subsequent report issued by CAFCASS be trusted?

The statement of Mr. Hinchliffe

11. I fully understand DJB's concern. However, it is premised on what transpire to be two misapprehensions, neither of which is the fault of the district judge. The first is that whereas CO1's risk assessment had been substantially completed on 2 September 2010; it was incomplete and had not been filed. The second, and more significant, is that CO1's original and unredacted report was not being relied upon by CAFCASS because it did not meet "quality assurance" standards, but because it was (a) incomplete; and (b) did not meet the terms of the Disclosure Protocol (the Protocol) reached between CAFCASS and the Association of Chief Police Officers (ACPO).
12. Mr Hinchliffe helpfully made the Protocol available to me in paper and electronic form. He explained that in carrying out its safeguarding checks, information was provide by the police to CAFCASS pursuant to the Protocol, and that CAFCASS was under a duty to comply with the Data Protection Act 1998 whenever it processed sensitive personal information. CAFCASS thus received from the police information on the police records but was unable to reproduce that information if it was not relevant to the child or children with whom CAFCASS was concerned.
13. Mr. Hinchliffe reproduced parts of the Protocol in his submissions, notably the two principles that personal data had to be processed fairly and lawfully; that personal data was to be obtained only for one or more specified and lawful purposes and was not to be further processed in any manner incompatible with those purposes.
14. Mr Hinchliffe explained that CAFCASS was not permitted to refer in reports to police information which was not relevant to the child or to give a copy of police information in its original form to any of the parties or their legal representatives. CAFCASS had thus to extract and make use only of the information considered to be relevant to the child. He exhibited to his written submissions the Guidance Note for CAFCASS England and I have appended it to this judgment for ease of reference. The Protocol itself is a public document and available on the website.
15. Mr. Hinchliffe thus submitted that it was not open to CAFCASS to disclose C1's draft report because it contained information which went beyond what was permitted by the ACPO Protocol. At the same time, Mr. Hinchliffe apologised for the fact that the matter was not properly explained to the district judge, and acknowledged that the phrase "quality assurance" was, in the circumstances, misleading.
16. I accept both Mr. Hinchliffe's submissions, and his apology. I hope that this judgment, and the extract from the Protocol attached to it will prove useful to the profession in helping it and the judges who conduct hearings under the PLP to understand CAFCASS's safeguarding responsibilities, and the duties which they owe under the Protocol.
17. In these circumstances, it seems to me that the case can now return to the County Court. The parties were able to agree a form of order, the terms of which I need not relate, but which I am content to make.
Appendix

Disclosure Protocol with CAFCASS and CAFCASS CYMRU in Private Law Cases dated 2008

Appendix B
Guidance note for CAFCASS England

What CAFCASS staff can do	What is not permitted	Comments
Seek and receive information relating to the welfare of children on new private law cases as outlined in the Safeguarding Framework (2.13-2.25)	Information on third parties such as new partners without seeking specific written consent or permission of the court	Guidance on making a judgement as to whether or not to request a police check in private law applications is set out at 2.14 of the CAFCASS Safeguarding Framework
Ask the local authority to do the same in public law cases	Routine requests for police information without checking what information held in the local authority file	Seeking information routinely, will both overload the police and reduce the responsibility of the social worker responsible for the child and family. We are seeking to ensure that these checks are undertaken by the local authority before they initiate proceedings
Discuss this information with the party to whom it refers and the judge concerned; its is also permitted and often necessary to discuss any information relevant to the welfare of the child with the other parent or carers, subject to section 5 above	To give a copy of police documentation to any of the parties or their legal representatives To discuss sensitive information about one party with another unless it relates to the child, subject to section 5 above	The police are rightly concerned with this sensitive information falling into the wrong hands
Refer in the report to any police information which is relevant to the child's welfare, subject to section 5 above	To attach a copy of the police documentation to the court report or refer in report to any information which is not relevant to the child.	As above – in addition it does not help the conflict between the parties to disclose convictions or incidents unless they are relevant to the child
Go back to the police if more information is needed – key to quote the original reference so time is not wasted on a fresh search from scratch		Care must be taken that we do not overuse what is a generally good service from the police
Disclose the information with the local authority Children's Social Care service if there are urgent child protection issues or if they are preparing a Section 7 report and are willing to abide by the same disclosure rules as CAFCASS/CAFCASS CWMRU	Disclose the information to other agencies when there are no urgent child protection issues	The police are willing to accept that if the local authority is preparing a report then they should benefit from the initial checks undertaken by CAFCASS rather than start again with their enquiries provided they abide by the contents of this procedure