D (Child) [2014] EWHC 2376 (Fam)

[2014] EWHC 2376 (Fam)

Case No FD12P01446

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Friday, 20 th June 2014

Before

MR. JUSTICE BODEY

(In Private)

RE: D

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MR. D. HOWE appeared on behalf of CAFCASS.

JUDGMENT

INTRODUCTORY

[1]This is an application by CAFCASS for orders(i) requiring CAFCASS to undertake safeguarding checks regarding the stepfather of two children and

(ii) requiring the mother of the children to provide CAFCASS with such information about him as is necessary for those safeguarding checks to be made. CAFCASS is represented by Mr. Darren Howe of Counsel. For convenience, I shall refer to the parties to this application as ‘the mother’ and ‘the stepfather’. I shall refer to the father of the two boys, who applies for contact to them, as ‘the father’.

[2]The mother and the stepfather are unwilling for safeguarding checks on the stepfather to be made. They have declined requests from CAFCASS to provide CAFCASS with the necessary information, namely his (the stepfather’s) date and place of birth and his addresses over the last 5 years, so as to enable the Police and relevant Local Authorities to search their records. Both the mother and the stepfather are Respondents to this application and have been served with notice of this hearing. The mother has urged CAFCASS by e-mail to approach the issue with ‘minimal participation from’ herself and the stepfather and has declined CAFCASS’ offer to be provided with a copy of Mr. Howe’s Skeleton Argument. She says that her family has already endured a great deal of intrusion from CAFCASS and that safeguarding enquiries about the stepfather are merely an afterthought. She and the stepfather feel that the checks may in truth be intended or used to satisfy the father’s ‘right to know’ the background of the stepfather. Neither of them has attended at this hearing, which has therefore proceeded as a one-sided application by CAFCASS. I was told by Mr. Howe that the father and his solicitors are aware of the application but not of its substance. SUMMARY OF FACTUAL BACKGROUND

[3]The mother and father were in a relationship from about 1995 until about 2004. The elder boy “A” is now 14 and the younger “B” now 10. Both have lived throughout with the mother, now at an undisclosed address. Also part of the family is the stepfather, the mother’s husband of about 8 years, and their daughter (half sister to A and B) who is aged about 5. In circumstances which will appear, the father has not seen either boy since 2004.

[4]In October 2004, when A was four and B was just under six months of age, there was a serious argument between the mother and the father. The circumstances of it became a ‘fact-finding’ issue at a hearing before me in 2006, where the underlying and contested application was whether the mother should be permitted to relocate abroad with the children for the purpose of her work. I granted that application. As part of that hearing, I found as a fact that during the altercation in October 2004, the father violently assaulted the mother. I went on to find, based on expert evidence, that the mother had suffered severe Post Traumatic Stress symptoms, including flashbacks, nausea, palpitations and other symptoms, which would revive at the very thought of any contact by the father with herself or her family. Her fears were well grounded. In the result she has seen and still sees the father as in her words a ‘monster’ and a ‘violent and manipulative pest’; a ‘worthless and dangerous intruder’, liable to undo the good which she has done for her boys and for her family.

[5]During the years after 2006, when the mother and the boys were abroad, indirect contact between them and the father petered out and he lost touch with them. Although the mother and children returned to England after a few years, he did not find out until 2011, whereupon he issued an application for contact. The mother’s engagement with that application was very patchy and it took a considerable time to achieve the necessary psychiatric reports on both parents. Those expert reports in a nutshell assessed that the father does not pose any significant risk of harm to the mother or the children. They recorded, however, that this was contrary to her own perception and advised that her then course of Cognitive Behaviour Therapy should run its course (by about February 2014) before any indirect contact should be attempted.

[6]It was within the father’s application for contact that a CAFCASS Officer, Mr. Power, was appointed to represent the two boys as Children’s Guardian. He reported on 9th September 2013, having separately interviewed both boys. He recorded B as having ‘marked’ the father out at ’10 out of 10’ and as saying with conviction, “I want to see him.” He recorded A saying that his memories of his father were ‘mostly good’. When he (A) filled in CAFCASS’ child’s questionnaire, he answered the question ‘Is there a big decision you’d like the family court to make for you?’, by writing, “Yes, contact with my father”.

[7]Both boys also spoke to Mr. Power about life in the family home. B scored his stepfather at ‘2 out of 10’ and said that the best thing about him was his name, a somewhat unusual name. A said of his stepfather, “I don’t really like him at all, he’s really controlling. He thinks he is the biggest person in the house. If mum said that B could go out, he [the stepfather] would undermine mum. He thinks he is the only adult and can override everyone, which is really frustrating.” He, A, said he did not mind going to church, but did not like the stepfather’s church. He scored the stepfather at only ‘3 out of 10’. On filling in the CAFCASS questionnaire already mentioned, and under the heading ‘What upsets me about my life at the moment’, he wrote, “I really hate my stepdad and how he is always intruding and trying to control everyone’s life.”

[8]At the time of Mr. Power’s report (September 2013) both boys had been having difficulties at school. The mother told Mr. Power that A had been recently suspended from school and had shown signs of self-harming. B has a diagnosis of ADHD and a receptive language disorder, with longstanding challenging behaviour arising from distractibility, inattention, impulsivity and hyperactivity. In September 2013, he was initially distressed at the thought of actually going to see his father and was running out of class. He also told the Special Educational Needs Co-ordinator that he was worried at the possibility of his mother sending him to a boarding school.

[9]The father’s contact application came before me on 23rd October 2013, the mother not being represented. During that hearing it became possible to reach a consensus that, at the conclusion of her course of Cognitive Behavioural Therapy (February 2014), indirect contact would commence. A further hearing was set up for the summer of 2014 to consider progressing to direct contact. At the end of the hearing in October 2013 the then Counsel for CAFCASS raised the question of safeguarding checks on the stepfather. As the stepfather was neither on notice nor present, I said that if necessary it would have to come back as a discrete application. Following further unsuccessful attempts to obtain the stepfather’s consent, CAFCASS issued the application referred to in paragraph 1 above. The father’s underlying application for direct contact is back before me in July 2014. MATERIAL TOUCHING ON THE NATURE OF SAFEGUARDING

[10]CAFCASS are unaware of any case in which a third party, like the stepfather here, has refused to co-operate with safeguarding checks on him or her and where the matter has come before a court. Are such checks on such an individual a routine formality; or should they first need to be justified in some way? CAFCASS seek some guidance as to good practice and approach. As a result I have been referred to a number of documents where the concept of ‘safeguarding’ is discussed. There is, as appears, not complete consistency as to the intended breadth of basic safeguarding.

[11]First in time, Mr. Howe took me to a Home Office letter dated 27th October 1982 addressed to the Chief Officer of Police regarding the disclosure of convictions for the purpose of welfare reports for the court. It refers to an agreement with ACPO that social workers and welfare officers should be supplied by the Police with details of any convictions of the parties to the proceedings, their cohabitees or their future marriage partners. [Emphasis added, as likewise hereunder].

[12]In Scott v. Scott

[1986] 2 FLR 320

, the Court of Appeal commented as a matter of generality on the purpose of welfare reports. Dillon LJ said “...the Service is required to investigate the circumstances of the child or children concerned and all the important figures in their lives, so as to provide the court with reliable factual observations and factual details which will be the base on which a Judge can form his own opinion.” Wolff LJ described it as ‘inevitable’ that the court should have information available to it about “...the respective backgrounds of the parties involved [and] their families who would be relevant in relation to the future of the child...”

[13]CAFCASS was established as a Service by the Criminal Justice and Court Services Act 2000. S.12 provides that “...in respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to(a) safeguard and promote the welfare of the children,

(b) give advice to any court about any application made to it in such proceedings...” and so on.

[14]S.16 A of the Children Act 1989 (as amended) states that:

“If, in carrying out any function to which this section applies, an officer of the Service [CAFCASS] is given cause to suspect that the child concerned is at risk of harm, he must (a) make a risk assessment in relation to the child...” and provide it to the court. In Annex 1 of the CAFCASS Child Protection Policy document dated 13th January 2014, risk factors of harm for the purpose of S.16A are stated as including, amongst others, actual or likely emotional abuse, behavioural difficulties, and self-harming. Those may be potentially relevant here. Given Mr. Power’s concern for the emotional welfare of the boys (in that “...they really do not like their stepfather”, and that “their experience of the stepfather is essentially negative”), Mr. Howe asks rhetorically how CAFCASS could begin to make a risk assessment pursuant to its statutory duty without being able to access basic safeguarding information about the stepfather? Similarly, he points out that, without such checks, the Children’s Guardian is unable to satisfy his obligation in Part 3 of Practice Direction 16a to the Family Procedure Rules 201, “...to make such investigations as are necessary to carry out the Children’s Guardian’s duties.”

[15]This brings me to the Child Arrangements Programme (CAP) effective since 22nd April 2014, which contains safeguarding provisions. I omit the Revised Private Law Programme of April 2012, since it is now outdated and its language is in any event similar to that of the CAP. Paragraph 13 of Practice Direction 12B (the CAP itself) under the heading ‘Safeguarding’, requires CAFCASS to identify on an application for a Child Arrangements Order any safety issues by making safeguarding enquiries. The language is that of checking out ‘safety’ and is limited to CAFCASS communicating with ‘the parties’: for example, “For all Child Arrangement Orders, this will include seeking information from Local Authorities and carrying out Police checks on the parties.” The results of those enquiries go into the Safeguarding Letter to be filed with the court within 17 days of the receipt by CAFCASS of the application for a Child Arrangements Order. There is nothing there expressly about checks on partners, stepfathers or other third parties.

[16]Mr. Howe refers next to a Disclosure Protocol between CAFCASS and ACPO dated May 2008 covering the disclosure and handling of police information into private family law cases. At paragraph 2.6 it refers to CAFCASS and CAFCASS Cymru as ‘safeguarding agencies’ and says that:

“...as such, they need to be as sure as they can be that children are safe within their current living arrangements, and will continue to be safe in any proposals or change to those arrangements.”

At paragraph 3.4 of the Protocol, it is provided that the disclosure of information from the police to CAFCASS may concern the children themselves and ‘parents, or carers, or other individuals whose relationship with the child may give rise to concern for the child’s welfare’. The stated categories of risk include emotional harm. Paragraph 3.5 notes the importance that ‘...the information provided [by the police to CAFCASS] relates to all child welfare concerns, rather than solely the issue of original concern which gave rise to the request to the police for information.’ The same Protocol also sets out the legal basis for the disclosure of information pursuant to the principles in Schedule 1 of the Data Protection Act 1998 (DPA), which I need not rehearse in detail here. Those principles are in summary (a) that personal data must be processed fairly and lawfully, there being a duty of confidence; and (b) that a balance has to be struck as between the need for disclosure and the (qualified) right to respect for the privacy of information, i.e. that any such disclosure must be in accordance with the law; have a legitimate aim; be necessary in a democratic society and be proportionate. There are other DPA principles which I need not set out and which are to ensure the security and confidentiality of the information so disclosed.

[17]The last CAFCASS material to which I am referred is the CAFCASS Safeguarding Framework dated April 2007. Paragraph 2.15 describes ‘screening’ as:

‘...the process of gathering together relevant information in relation to all children and relevant adults with whom CAFCASS works’

. This process is said to lead to ‘a check of whether any factors that give rise for concern about the well being or safety of the child or relevant adult family member are present.’ A ‘relevant adult’ is said to be ‘defined at paragraph 3.73 below’, although that paragraph does not actually give a definition. What it does say is that ‘relevant adults may include for instance members of the same household as a party seeking residence or contact [and] would include new partnerswhere it might be expected that the person would come into contact with the child, or where the relationship might deepen so that the person would come to have more involvement with the child.’ It can be seen that the rational of this approach envisages safeguarding which could be quite far reaching. Paragraph 3.72 says that the CAFCASS practitioner should make a judgment as to which if any individuals (aside from the parties) are ‘relevant’ once he/she has been allocated to the case. DISCUSSION

[18]The case presented to me by CAFCASS has wavered. At first it was that partners such as this stepfather should be and are routinely made the subject of safeguarding checks. That certainly did not happen here, however, since the father’s application for contact was dated June 2011 and CAFCASS’ request for information on which to make safeguarding enquiries about the stepfather was not made until after Mr. Powers’ report in September 2013. Only the mother, as I am told, was safeguard-checked at the outset. Later in submissions the argument for CAFCASS was that it is not in every case that a partner or other third party is (subject to consent) safeguard-checked: only if in the opinion of CAFCASS such checks appear justified. However, in a written submission lodged by Mr. Howe since the hearing, CAFCASS’ definitive position is that third parties such as the partners of parties to private law proceedings are routinely asked to consent to safeguarding checks (and inferentially that the lack of a request of this stepfather at the beginning of the father’s contact application was an oversight). In the light of these differing submissions as to fact, I have considered requiring CAFCASS to file evidence about the normal practice in respect of third parties such as partners, but have concluded that it is not necessary or proportionate. For the purpose of the decision I have to take here, it does not greatly matter which is right; and the question of which approach should be, rather than is, adopted by CAFCASS (routine checks, or only if checks justified) is not one on which it would be desirable to reach a final conclusion without adversarial argument. I very much doubt in any event whether a blanket approach applicable to all cases could be formulated by a Judge, such being the wide variety and nuances of family relationships, which exist in all shapes and sizes. What is apparent is that the CAP expressly provides only for safeguarding checks being made on the parties to the dispute in question, whereas other CAFCASS and ACPO documentation clearly envisages wider information being routinely provided about relevant third parties, such as partners, with their consent.

[19]Here, Mr. Power has been genuinely concerned about the welfare of the boys, given the contents of his report above. He has felt that the court needed to be aware of any relevant information about the stepfather as part of the overall picture of family life, into which a court unavoidably intrudes to a greater or lesser extent when considering a contact application. I saw him in the witness box in October 2013 and described him in my Judgment as ‘...an extremely experienced social worker within the CAFCASS High Court Team, having considerable experience both with PTSD and SEN cases.’ I do not therefore consider that this application to the court is being made by CAFCASS lightly. It is put to me that CAFCASS will undertake to receive any information about the stepfather from the police and relevant Local Authorities in strict confidence; will review anything which may be relevant to the boys’ welfare and disclose only that particular information to the court; and will not disclose any of the obtained information elsewhere without the permission of the court. It is suggested by and on behalf of CAFCASS that this is in fact what the concept of safeguarding is all about: namely a belt and braces exercise to avoid children’s welfare being at risk, even where there may be no evidence of risk and where, but for the fact of legal proceedings, the family concerned may never have attracted the attention of the authorities. It is said that if nothing is disclosed by the enquiries, then nothing is lost; but that if something important is turned up, which might have a bearing on the boys’ welfare and/or on how best to handle the father’s application for direct contact to them, then it is as well that the enquiries were made. Mr. Howe put it that ‘the end justifies the means’. On the face of it, these points appear well made, flowing logically from the rationale behind the concept of ‘safeguarding’ as I consider it to be generally understood.

[20]In determining this particular application, I need also to place into the balance the points which the mother and stepfather would have made if they had participated at this hearing:(a) that safeguarding as regards the stepfather is an afterthought;

(b) that he has been living with the boys for nine years;

(c) that the father’s contact application does not put the stepfather’s care of them in issue and is in effect fortuitous;

(d) that there is nothing wrong with the stepfather setting firm boundaries, which youngsters need and which the mother accepts he does, but which the boys may experience as controlling; and

(e) that the investigations and court interference created by the father’s application are intrusive within their otherwise settled family life. I add, having seen and heard the mother in October 2013, that I am acutely conscious of this latter point and of what I will call her ‘fragility’ in respect of her having to think about the father at all and about his indirect influence over her family. I said this of her in my Judgment of 23rd October 2013:

“...I have great sympathy with the mother. She is clearly a good mother and she is substantially conflicted in balancing her own feelings – in respect of not all of which is she in control – together with her husband’s needs and the needs of the two boys...”

CONCLUSION

[21]There is force in all the above points, those in favour of CAFCASS’ application and those driving the mother and stepfather’s opposition to it. It is the fact that the family unit of mother, stepfather, the boys and their half-sister has been in place for years; it is not some new arrangement being brought about as a possible outcome of the litigation. The father’s application does not seek to change the current care arrangements for the children, nor (quite rightly) is the stepfather even a respondent to the father’s underlying application. I only joined him for the purpose of this discrete application about safeguarding. It is also the fact that these proceedings had been ongoing for in excess of two years before safeguarding in respect of the stepfather was raised. On the other hand, the things which the boys said to Mr. Power about their stepfather and their feelings towards him do raise a measure of concern and do create a situation where, when considering their having increased contact with the father, it may be beneficial to know about any relevant background of the stepfather, on whom they must clearly depend for aspects of their guidance and sense of security.

[22]In the last analysis, it comes down in my mind to a question of proportionality. Is it or is it not proportionate, in the interests of the children and of ensuring that there is nothing worrying in the stepfather’s known background, that he should suffer some carefully regulated interference with his right to respect for his private life? Carrying out this balancing exercise, and indeed on balance, I have come to the conclusion that it is proportionate and that any relevant information about him which might be held on record should ideally be known to the court.

[23]I will therefore make the order in the terms submitted to me by Mr. Howe, with some amendments of my own. It essentially requests that the mother and stepfather do now reconsider their approach and do co-operate with CAFCASS, following this consideration of the appropriateness here of safeguarding and this balancing of the competing interests. I hope they will come to see that their fears are not justified: that this is not being done to satisfy any wish by the father to be intrusive (he has had nothing to do with this discrete application): that the information obtained will be carefully handled and be under the ultimate oversight of the court; and that, even though the request has come late, it would nevertheless be better that the true position were known (if there is anything on record) than that CAFCASS and the court are left to speculate as to why consent had been refused. I will consider the mother and stepfather’s response to the court’s request when the father’s contact application itself is back before me next month, or otherwise when they have had a proper opportunity to think about it. GENERALLY

[24]As to the ‘guidance’ which I am asked by CAFASS to give, I have already said it is not easy or necessary for the court to be prescriptive about whether safeguarding enquiries about third parties like partners should be routine, or only if appearing justified in some way. It will depend on the precise circumstances of the various relationships. In practice, I would expect that co-operation for such enquiries would generally be sought in respect of partners of the parties and if such a partner did not give his or her consent, then (as here) that an application to the court would usually be made by CAFCASS in its discretion. The fact of such a refusal to give consent should in any event be included by CAFCASS in the Safeguarding Letter filed with the court prior to the First Hearing Dispute Resolution Appointment (FHDRA). The Judge taking the FHDRA can and should then consider the situation without delay and decide what if anything to do. If necessary, the FHDRA should be adjourned for a short period to enable the individual concerned to be given notice and to make representations. I further accept CAFCASS’ general propositions about safeguarding and third parties (as’ tweaked’ by me) as follows:(i) that there is a public interest in the court having information which may be relevant to its determination of a child’s welfare in private law proceedings;

(ii) that any relevant individual who is not a party has a right to respect for his private life, which includes maintaining the privacy of data retained about him by Local Authorities and the Police;

(iii) that the court must therefore balance the individual’s right to privacy against the public interest in the due administration of family justice and the need to safeguard the children who are the subject of the proceedings;

(iv) that, since it is mandatory under the CAP for safeguarding checks to be completed on the parties to the application, departure from that approach for individuals who are part of the same household as the child should logically and generally require some good reason;

(v) that the nature of the application before the court, whilst a relevant consideration, is not determinative since the court’s concern for the welfare of the child is not necessarily limited to making those orders specifically applied for by the parties;

(vi) that the safeguards about the handling, transmission and storage of data provided within the Disclosure Protocol between CAFCASS and ACPO must be applied to any disclosure of information concerning other relevant individuals from the Police and/or from Local Authority records; and

(vii) that the court should generally require undertakings from CAFCASS about (a) the confidentiality of information which it obtains by way of safeguarding checks; (b) its duty to pass to the court only such information as may be relevant to the issues in the case or to the general welfare of the child; and (c) its duty not to disclose any of the information obtained to anyone else without the leave of the court. __________