D v Buckinghamshire County Council

The appeal is brought by leave of Wilson LJ. It is in form an appeal against an Order of His Honour Judge Altman dated 18^th March 2008 but (as Wilson LJ points out in his Directions Order) it is in substance an appeal against the judge’s judgment of 10^th January 2007.

This case raises two difficult questions: first, as to the extent to which information that arises or facts found in the family proceedings should be disclosed to any person or body who would not, under the Rules of Court, be privy to them; and secondly as to the basis on which such disclosure should be made.

In the last two decades social policy has very much been concerned with the provision and maintenance of measures designed to protect children and vulnerable adults. It is right that the development of family law should take full account of prevailing social policy considerations and thus the issue to be determined in this case is best understood in the context of the relevant existing statutory framework.

By section 142 of the Education Act 2002 provision is made for an exclusionary list (usually known as “List 99”) of those prohibited essentially from holding teaching posts in schools. This list is currently the responsibility of the Secretary of State for the Department for Children, Schools and Families (“DCSF”) and the scheme is built on a previously existing scheme in relation to those involved in education.

The Protection of Children Act 1999 also provides for an exclusionary list (“the POCA list”). This is currently the responsibility of the Department of Health (“DOH”) but is in fact operated by the DCSF. This has a far wider ambit than List 99 and is, by Section 1(1), a list of individuals… “considered unsuitable to work with children.” This comprehends voluntary as well as paid work. It too supersedes earlier arrangements.

Part 7 of the Care Standards Act 2000 introduced a further list (the “POVA List”) in relation to vulnerable adults which mirrors the POCA list. Moreover, Part 2 of the Criminal Justice and Court Services Act 2000 conferred on criminal courts the power to bar individuals working with children and a register of such orders is also maintained.

As well as the registers and lists, an important part of the protective framework is found in Part V of the Police Act 1997. This relates to the provision of Criminal Record Bureau records (“CRB”) which in its current form may be disclosed in two types of certificate. Section 113A provides for a standard certificate whereas Section 113B provides for an “enhanced” certificate which not only includes “spent” convictions but may, in the discretion of the “Chief Officer”, include allegations or findings made in civil proceedings of which the police have knowledge.

This multiplicity of lists and division of responsibilities was always likely to provide fertile soil for confusion and error as was pointed out in the Report in June 2004 of the Bichard Inquiry. As a result Parliament legislated again and there came on to the Statute book the Safeguarding Vulnerable Groups Act 2006 the purpose of which was to harmonise and unify the various statutory lists. The Act legislates for an Independent Barring Board which will in fact be known in practice as the Independent Safeguarding Authority. The intention is that this authority will take all the discretionary barring decisions presently taken by the relevant Secretaries of State and that the various lists (civil and criminal) will be replaced with two lists: one relating to children and one to vulnerable adults. It will also widen the scope of the activities covered. Full implementation is currently planned for October 2009. Part V of the Police Act 1997 will remain in force subject to an amended Code of Practice. In the meantime the old regime will continue to operate, subject to any transitional arrangements which may be made in the interim.

It is important to note that full registration (other than in respect of criminal convictions) is ordinarily discretionary and only after the person concerned has had an opportunity to make representations. The Care Standards Tribunal has appellate jurisdiction in relation to this system as provided for in the individual legislation. This will continue under the 2006 Act.

It will be apparent that the statutory schemes are elaborate and wide ranging in their effect. On the face of it therefore, family law ought to be developed (if at all) in line with the purposes of those schemes. It will be necessary to consider whether, and if so how, that should be done.

On 15^th June 2005 a young Indian man called ‘J’, then aged 16, arrived in the United Kingdom. He was met at the airport by ‘D’ who then took him to ‘D’’s home. During that journey a bus driver became suspicious and reported his concerns; as a result the local authority became involved and made enquiries. On the 28^th July 2005 the local authority obtained an Emergency Protection Order in respect of ‘J’ and he was removed from ‘D’’s home to which, in the event, he never returned. The local authority initiated both care proceedings under Part IV of the Children Act 1989 in respect of ‘J’ and sought injunctive relief under the inherent jurisdiction of the High Court so as to prevent contact between ‘D’ and ‘J’, since ‘D’ was not in fact a party to the care proceedings. For his part ‘D’, at an early hearing, gave oral intimation of his intention to seek residence or contact orders in respect of ‘J’ pursuant to Part II of the 1989 Act; no written application for these orders was ever made or required of him.

‘D’ was not, of course, a stranger to ‘J’ for between January and December 2004, ‘D’ had been employed as a teacher at a school in India where ‘J’ was a student and where ‘J’’s father was also employed. ‘D’ had befriended the family which entertained for their children educational aspirations beyond their financial means. ‘D’ had offered to have ‘J’ in this country to further his education and the family had agreed. Thus it was that ‘J’ came to this country in June 2005.

The enquiries that were made in relation to ‘D’ revealed a history that understandably alarmed the local authority given the circumstances. ‘D’ had had a number of teaching jobs, some quite short-lived. Some had ended in dismissal either because ‘D’ had lied about his qualifications and/or it had been concluded that his behaviour towards or conversations with students were unacceptable. Whilst there was no specific allegation of sexual abuse, it was the view of the local authority that a pattern of behaviour emerged from the history which could be described as “grooming”. Thus it was that they had urgent concerns about the safety and welfare of ‘J’ and took the action they did.

A very much fuller history in respect of ‘D’ can be found in the judgment of His Honour Judge Altman handed down on 10^th January 2007. The present judgment seeks to do no more than set out the facts necessary for an understanding of its conclusions and reasoning.

Although this case essentially came under the control of Judge Altman, it was before Judge Serota, Q.C., on 15^th August 2005 that a series of orders for disclosure was made against various bodies and agencies. It was that disclosure, together with the researches of the local authority and the police that comprised the evidence to be deployed by the authority in these proceedings. Although ‘D’ was then acting in person, it is clear that he was carefully taken through all the disclosed material. It was in those circumstances that all the applications came on for hearing before Judge Altman on 1^st September; unsurprisingly he was unable to complete the hearing and it went part-heard to 16^th September.

On 5^th September ‘D’ wrote in person to the judge indicating that he did not intend to continue his involvement in the proceedings and that it was his intention to go abroad. Apparently he informed others that he was going to work with V.S.O. In fact he had secured employment at a school in Tenerife which he took up on 8^th September. It appears to have been short-lived since ‘D’ returned to the country on 23^rd December 2005. On 1^st February 2006 he was notified by the police that they had no evidence to warrant criminal charges. Meanwhile the Court had acknowledged the letter of ‘D’. The order on 16^th September 2005 was made by Judge Horrowitz, Q.C.; on that occasion he gave leave for ‘J’ to return to India and listed the local authority’s application to withdraw the care proceedings before Judge Altman on 20^th October 2005. On 1^st October ‘J’ returned to his family in India where he has since remained.

On 20^th October Judge Altman effectively did two things. First he heard evidence and made and recorded a number of findings of fact before making no order (presumably in accordance with Section 1(5) of the 1989 Act) on the local authority’s Part IV application; the injunction proceedings were also discontinued. Secondly, the judge made orders authorising disclosure of those findings to named bodies, which broadly coincided with those in respect of whom the 15^th September order had been made. Whilst ‘D’ could have been under no illusion but that the Part IV proceedings would be continued in his absence, it appears that he had no knowledge of the disclosure application. Indeed it is possible that it was not finally resolved upon until 20th October itself. The judge gave a brief judgment which does not set out the detailed evidence nor does it consider in any depth the legal principles involved in disclosure; in the circumstance that may not be surprising.

On 13^th February 2006 ‘D’ applied to set aside the order of 20th October 2005. Having refused an application to recuse himself, the judge on 13^th July 2006 decided that he had jurisdiction to review his earlier order and decided further so to do. The last application was unsuccessfully opposed by the local authority. Over two days in November 2006 Judge Altman effectively reheard the applications originally determined the previous October. On this occasion ‘D’, although acting in person, participated fully and gave evidence; the judge then reserved his judgment.

Some disclosure had taken place following October 2005. In May 2006 the local authority alerted recipients to the fact of ‘D’s application. The matters arising out of that have never been properly resolved and this court has been asked to deal with the matter irrespective of the outcome of this appeal since amongst the orders made by the judge on 10^th January 2007 consequential to his judgment was one discharging the disclosure orders made in October 2005. Moreover, having discharged his order of October 2005, no real profit is to be had by detailed examination of either the judgment or order then made.

It is upon this judgment that this Court should principally focus attention as it is the source both of the findings that are under attack in this appeal and the principles upon which the judge ordered disclosure. One of the difficulties in this case is that the order to implement this judgment, although much debated, has never been finally drawn up and approved by the judge. The current draft came into existence in February 2008 and although not finalised does at least demonstrate the intended purpose of the judgment. It is headed as follows:

Since this court is essentially concerned with the issues of principle as to whether such findings ought to have been made and, if so, whether and to whom they should be disclosed, it is unnecessary to set out in any detail their nature and substance. It is enough to say that they cover eight schools at which ‘D’ had been employed and they concern deceit over qualifications and allegations over attitudes towards pupils individually and more generally. They do not amount to findings of indecent assault or active sexual abuse but in their totality paint a picture which in child protection terms is distinctly worrying, something which is exacerbated by a number of specific findings that ‘D’ had misled the court and had not been frank in his evidence.

The first contention of ‘D’ is that the judge should never have proceeded with a finding of fact hearing in October 2005 nor should he have done so in November 2006 when his response to ‘D’’s application should simply have been to discharge the October 2005 order. What is essentially said is this. By September 16^th 2005 it was known that ‘D’ had gone abroad and was not pursuing any of his applications and it was then that ‘J’ was given permission to return to India; accordingly it is said that there was no further purpose to be served either by the care or injunction proceedings. Thus there was no live issue before the court and the court should not have proceeded with the matter at all.

Insofar as Mr Pitt-Payne on behalf of ‘D’ sought to argue that the court did not have jurisdiction to inquire as it did in October 2005, that proposition is firmly rejected. Parties have no right in family proceedings to discontinue at will and always require the leave of the court to withdraw – see FPR [1991] 4.5(1). Accordingly proceedings remain active until the court otherwise determines. It is therefore open to a court to find facts even where there is no live issue. Sometimes it is necessary to do just that either because a further application may in due course be made in respect of the child or because a party to those proceedings may in due course become involved in the life of another child. That may be a long time later when in practice it may be too late to investigate the original circumstances of, say, alleged injury, abuse or other misconduct. The requirements of FPR 4.5(1) have a sound basis in practical experience.

What is a separate issue, and what ‘D’ is entitled to argue, is whether the judge should not have done what he did in this case in October 2005. Not only is it said that there was no live issue to determine and that ‘D’ had no notice of what the judge was in fact to do but also that since the sole purpose of the hearing was to authorise disclosure, it was a misuse or at least unnecessary use of the court’s jurisdiction. Moreover, Mr Pitt-Payne argued, the evidence was in many cases second hand, stale and often controversial. Notwithstanding those arguments, I think that the judge was right to act as he did, subject only to the question of notice. Some of the matters laid before the judge could indeed be individually criticised as stale but the force of the findings lies essentially in their cumulative effect and the overall picture so presented. Many of the matters had been the subject of disciplinary findings and the overall picture is a consistent one. The point that ‘D’ was over retirement age carries little weight not only because supply teachers may be of retirement age but also the question of employment is not the only issue. ‘D’ did not bring ‘J’ to this country in the course of his employment. The judge was entitled to conclude that ’D’ was a man who might well both continue to associate with children and also might well pose a risk to them and accordingly it was both desirable and permissible to draw the information together and consider its implications.

I see the force of the complaint that ‘D’ had no notice of the judge’s intentions although the reason he had no notice was simply his own voluntary act in leaving the country and furnishing no address. In those circumstances I conclude that the judge was right to accede to ‘D’’s application to reconsider the October 2005 order and was further right (for the reasons given above) to rehear the matter fully in November 2006. Thus insofar as ‘D’ seeks to argue either that the judge had no jurisdiction to find the facts or should not have done so in this case, I conclude that the judge was right so to do.

In his judgment of 20^th October 2005 the judge did not fully reason his decision to authorise disclosure but he did do so in his judgment of 10^th January 2007 and it is common ground that the focus of the inquiry should be upon that reasoning. The judge based himself very much on the judgment of Bodey J in RE C (DISCLOSURE: SEXUAL ABUSE FINDINGS) [2002] 2 FLR 375. It is common ground that this judgment accurately surveys and sets out the law. In so doing Bodey J refers to the decision of this court in Re EC (DISCLOSURE OF MATERIAL) [1996] 2 FLR 725. Again it is common ground that Re EC is the current authoritative statement of the law on the specific issue of disclosure from family proceedings into potential or actual criminal proceedings. In particular great assistance is to be derived from Swinton Thomas LJ’s distillation of the law into the ten principles found on p.733 of the report. The issue with which Bodey J was dealing is (as here) rather different and does not involve prospective criminal proceedings.

Bodey J summarises the legal position as follows –

“Application here of domestic law on disclosure

[61] I need not go through the ten considerations referred to by Swinton Thomas LJ at 722(sic) of Re EC (Disclosure of Material) [1996] 2 FLR 725, since theparties are agreed that the main competing factors here are as follows.

Of course such matters as these engage individual rights enshrined in ECHR Article 8(1). It is a serious matter to encroach on such rights. However Article 8 confers rights of a qualified nature as set out in Article 8(2) particularly where the rights of others (in this case other children) are also engaged. As long ago as 1990 in the case of R -v- HARROW LONDON BOROUGH COUNCIL ex p AD [1990] 1FLR 79 Butler-Sloss LJ (as she then was) said this –

“In balancing adequate protection for the child and fairness to an adult, the interests of an adult may have to be placed second to the needs of the child. All concerned in this difficult and delicate area should be allowed to perform their task without looking over their shoulder all the time for the possible intervention of the court.”

That statement of principle in the first sentence is firmly established in domestic family law. It is in no way inconsistent with the developing European jurisprudence on Article 8. I venture to express the opinion also that it is wholly consistent with the intention of the legislature as appears from the survey of the statutory framework earlier in this judgment.

And so one returns to those principles set out above derived from the judgment of Bodey J in RE C. The fundamental submission of Mr. Pitt-Payne is that there significantly lacked in this case the “real and cogent evidence of a pressing need” to disclose. In my judgment it is not in fact possible to resolve that matter without bringing into consideration the question of to whom disclosure is to be made.

It is particularly difficult in this case to ascertain precisely to whom the judge intended disclosure. He set out the recipients in his October 2005 judgment. That order was of course revoked. In his January 2007 judgment he names potential recipients but in fact invites further submissions from the parties which came in somewhat desultory fashion, in fairness due in part to ‘D’ acquiring legal representation for a time and to a further unsuccessful application to re-open the whole matter. This application was correctly rejected by the judge. The proper route of challenge would have been to seek permission to appeal out of time to this court. In the end it looks as though there are three potential recipients: the DCSF, the Home Office and the High Commission of India. I think it desirable to deal with the DCSF separately.

As will be apparent the DCSF have current responsibility for maintaining List 99 and the POCA list. The POVA list is not relevant to this case and ‘D’ has no relevant criminal convictions. Is there real and cogent evidence of a pressing need to disclose these facts to the DCSF?

In my judgment the answer to that is the answer implicit in the judge’s own judgment; “yes”. The judge has made a series of findings. Those that are his own findings are ones that he was clearly entitled to make on the evidence heard by him. The findings of honest belief on reasonable grounds are again findings open to him on the evidence he had. Drawn together those findings paint a worrying picture of potential risk to other children or young people. There are entirely reasonable grounds on the facts of this case to believe that ‘D’ will seek such involvement in the future. It is in respect of just such a situation that the statutory lists have been created.

Moreover, the efficacy of such lists must depend in large part on the quality of the information provided to the DCSF (and in due course to the I.S.A.) and information based on findings on evidence or (after argument) distilled from evidence is likely to be of sound quality. Of course it will be for the Secretary of State (or I.S.A.) to decide whether an entry in a list (and if so which) should be made. There will be an opportunity for representations to be made by ‘D’. There is an appellate regime.

In my judgement, having considered all these matters in the context of the principles enunciated by Bodey J in paragraphs 62-65 of Re C, I am satisfied not only that the judge was entitled to order disclosure to the Secretary of State in this case but was right to do so.

However, I find that I arrive at a different conclusion in respect of any other proposed disclosure. The statutory regime is extensive and is known and accessible to those who have professional responsibility for the care and protection of children. I see nothing in this case that warrants going beyond that. ‘J’ is now an adult and so is outside the court’s consideration. In respect of any other disclosure there lacks, in my judgment, any evidence of pressing need for disclosure outside the statutory framework and in that regard I respectfully differ from the judgment of the learned judge.

It follows that whilst the essence of the judge’s judgment is to be upheld, I would propose that the matter is remitted to him with a view to determining the precise form of the disclosure schedule (the local authority conceding that there are errors in its present draft form) and thereafter authorising disclosure to the DCSF but not otherwise.

A consequence of this decision of the court may be a greater readiness on the part of courts to disclose findings to the DCSF and in due course to the ISA. It will not of course apply to the great majority of cases where findings are specific to that family, its own members and its own situation. Where, however, findings may have implications for other children or vulnerable adults the position may be different and careful consideration may have to be given to this specific disclosure. By the same token, particularly when the extended regime under the 2006 act, which sets up the ISA, comes into force, disclosure outside the statutory framework (save of course into related criminal proceedings) will be very much the exception.

I agree.

I have had the advantage of reading in draft the judgment of Mr Justice Hedley, with which I am in full agreement.

In my Judgment the order of 20 October 2005 is deeply flawed. There can be no doubt that D was given notice of the dossier that the local authority was compiling against him at the hearing before Judge Serota in August. There is then uncontraverted evidence that the guardian took him through the dossier. Equally at the hearing on 1 September it was made clear that the local authority would be seeking the finding of facts. That undoubtedly led to D’s flight announced in his letter of 5 September. The response from the Court of 8 September effectively granted him leave to withdraw his applications.

However Mr Ageros accepts that the application for disclosure of facts found was not formally issued and was not supported by any written evidence. He further accepts that at the hearing on the 16 September there was no mention of an application for disclosure to be made at the 20 October hearing. He speculates that the issue of disclosure was first raised informally and orally on 20 October.

Albeit that D was by then in Tenerife this constitutes a fundamental breach of natural justice. He was absent by choice but he was plainly entitled to know that there would be an application for widespread dissemination and that the court might so order.

Furthermore the exceptional nature of the disclosure order seems not to have been drawn to the judge’s attention. He was not referred to the relevant authorities. There is no explanation within the judgment as to the basis upon which he exercised his discretion to make the exceptional order. Equally absent is any explanation of why the list of recipients was drawn so large. It seems largely to have followed the list of those from whom information had been ordered at an earlier stage of the proceedings.

Given those circumstances, it is hardly surprising that D, on his application of February 2006, was granted a full review, which took place at the hearing in November 2006 at which he was present if not represented. The reserved judgment of 10 January 2007 is extensive and fully reasoned. Its only flaw is that it maintained the same list of 20 recipients of the disclosure.

It seems that D achieved representation in the shape of Miss Hughes with the issue of the Application in March 2007 to set aside the January Judgment and Order.

A consequence of Miss Hughes’ arrival was the judge’s decision, never expressed in an order, to recall the disclosure disseminated as a consequence of the order of 20 October. Perhaps because the Judge’s direction was never made the subject of the order, his intended recovery of the documentation was not effective. By way of instance, the police are still refusing to return documents disclosed to them under court order without a further order from the court.

Judge Altman’s judgment of December 2007 is not open to criticism. It is to be noted that in his judgment he records Miss Hughes’ concession that the information was properly disclosed to the Secretary of State for consideration for inclusion on list 99 and the POCA list. Mr Pitt-Payne attempted to put a question mark over that concession. Although Miss Hughes’ written submissions for the hearing in October 2007 may have been equivocal, it can be safely assumed that she made the concession during the hearing, since it is so plainly recorded in judgment and no objection was taken to that record during or after the hand down.

One improvement achieved by the December judgment was to reduce the list of recipients from 20 to 5. That beneficial process was continued by the judgment of March 2008 which reduced the recipient list from 5 to 3.

Coming now to the appeal, it can be seen to fall within a narrow compass. Clearly Mr Pitt-Payne fails in his submission that it was not open to the judge, or alternatively he wrongly exercised his discretion, in making findings of fact, (and, a fortiori, findings as to local authorities’ reasonable belief as to past fact) when the public law proceedings had effectively terminated and the private law proceedings had been withdrawn. Whilst I accept that there may be artificiality in the order of 16 September 2005 which adjourned the local authority’s application to withdraw over to 20 October 2005 and required further evidence in support, Judge Altman was clearly entitled to embark upon a hearing to establish the worth of the dossier given the strength of the material against D both historically and in relation to J. It is of course important to separate the decision to fact find from the decision to disseminate such facts as were established. Mr Pitt-Payne’s case is only good as against the second decision. However that does not much profit him given that the order was implemented before challenge by D and given that D’s challenge was, to a large extent, properly determined on 10 January 2007. The only flaw lies in the width of disclosure and that remains a live issue, despite the reductions made by the Orders of December 2007 and March 2008. We are not concerned with the content of the schedule, as yet still in draft. If that cannot be agreed following submission of D’s written criticisms then that is an issue to be determined by the court below.

On the one remaining issue, there is no doubt, in my mind, that disclosure to the Secretary of State is fully justified. Conveniently the Department of Children, Schools and Families, maintain not only the List 99 but also the POCA List. That is transitional pending the commencement of the function of the ISA in approximately 12 months time. In relation to the disclosure to the Secretary of State it is important to emphasise that it does not lead to automatic inclusion on either list. It is only material to be considered by the Secretary of State. If, in the exercise of his statutory discretion, he decides that it merits registration, the person affected has statutory rights of review.

In the Order of March 2008 the other named recipients are the High Commission of India and the Home Office. The justification for their inclusion is unclear and I would confine disclosure to the Department of Children, Schools and Families.

It was agreed at the bar that a formal Order should be made by this court recalling the return of the information disclosed to all other recipients and its deletion from any form of storage.

We are particularly indebted to Mr Pitt-Payne and Ms White on behalf of ‘D’ who have appeared through the Bar Pro Bono Unit following the plea of Wilson LJ in giving Directions in this appeal that ‘D’ should be represented. ‘D’ has been well served and we are very grateful to them.