A Local Authority v SK & Anor

THE HON. MR JUSTICE SUMNER

This judgment is being handed down in private on 23 May 2007. It consists of 10 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr Justice Sumner:

Introduction

1. This is an application by a Local Authority, for an order that they may disclose information arising from a judgment I gave in care proceedings on 3 February 2006. Those proceedings related to the mother, 36 year old Ms K and her daughter H who was born on 12 November 1996 and is now 10 years of age.

2. I held that, shortly before 23 March 2005, the mother had assaulted H causing marks and bruises to her left eye, 3 linear marks and a bruise on her shoulder. The mother denied responsibility, blaming a friend who had been staying but had now returned to Africa. I held that there was no such friend; the mother had forged a letter from the alleged friend admitting the assaults.

3. The mother is employed within the geographical location of another local authority working in a residential home for elderly people. The applicant local authority seek permission to disclose my findings to the mother's employers or the relevant local authority for them to take such action as they may consider appropriate.

4. The mother was neither present nor represented at the hearing. I have presumed she opposes the disclosure.

Summary of background

5. The mother came from Uganda to England in 1994. She met H's father and entered into a relationship with him. According to the mother, he was deported from this country in 1997, a year after H was born.

6. H remained living with her mother until 23 March 2005. On that day the headmistress of her primary school told the local authority that H had marks on her face and body. When H was seen in hospital some 30 marks were seen on her.

7. On 24 March 2005 the local authority applied for a care order. The case came before me for a fact-finding hearing. The mother and H through her Guardian, were represented by experienced counsel. It lasted from 31 January to 3 February 2006 when I gave judgment.

8. I made the findings I have listed above. I held that H had given different accounts of how the marks occurred. The mother had caused H considerable pain and distress. H has remained in foster care, presently at a therapeutic centre.

The issue

9. On the basis of the summary above, the issue can be stated as follows. It relates to a party to care proceedings who has been held to have assaulted her 8 year old daughter with sufficient force to cause bruising and marks, which she has thereafter denied and invented a spurious defence. Should permission be given to the local authority who brought the care proceedings to pass on that information to the mother's employers and those who run the care home where she works with vulnerable elderly residents? In order to determine this I shall shortly review relevant decisions.

The law

10. In A County Council v W and others (Disclosure)[1997] 1 FLR 574, Cazalet J considered an application by the General Medical Council for disclosure of documents from care proceedings. A registered medical practitioner had been held to have sexually abused his daughter. The purpose of the disclosure was to consider whether he had been guilty of serious professional misconduct. The GMC had a statutory duty which included protecting members of the public.

11. All the factors for and against disclosure were carefully balanced. It was held that the court would be extremely cautious about ordering disclosure where it would not promote the child's welfare as in that case.

12. However in the circumstances of the case "there is an overwhelming and overriding public interest" in permitting the GMC to consider whether it should bring charges against the father and to consider his position and status as a registered medical practitioner. The public interest "is a very strong and potent argument for disclosure …...". This had to be appropriate.

13. That included giving notice to the relevant parties and in particular those acting on behalf of the child if any charges were to be brought, so that restrictions on publicity could be sought. Assurances had to be given in relation to the minimum number of people who needed to be informed. Finally, in the event of any hearing, the public and the media were going to be excluded. Any charges or findings would be in the shortest form appropriate with no disclosure of the name of any child and with any reference to a child being subject to anonymity.

14. In Re: C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, Swinton Thomas LJ set out factors governing disclosure by local authorities, of material relevant to the death of a baby from alleged non-accidental injuries to the police. It is relevant because its broad principles have held to be applicable here.

15. He held that those factors were the welfare and interests of the child concerned, the maintenance of confidentiality in children cases, the importance of encouraging frankness, the public interest in the administration of justice and the prosecution of serious crime, the gravity of the alleged offence and the relevance of the evidence to it, the desirability of cooperation between the various agencies concerned with the welfare of children, other factors relating to fairness to a person who had incriminated himself, and other material disclosure which had taken place. The public interest in the administration of justice by a proper investigation and the prosecution of a crime were very weighty factors indeed favouring disclosure.

16. In R v Chief Constable of North Wales Police ex parte Thorpe[1998] 2 FLR 571, convicted child sex offenders were unsuccessful in challenging the policy of the police to disclose information about them to members of the public in order to protect children. Lord Woolf MR held that each case had to be judged on its own facts. The decision was a highly sensitive one. "Disclosure should only be made when there is a pressing need for that disclosure".

17. In Re: V and Re: L (Sexual Abuse: Disclosure) [1999] 1 FLR 267, the court quashed a decision to disclose findings of sexual abuse in care proceedings to a local authority and to a football league. Butler-Sloss LJ, as she then was, held that the principle of a pressing need for disclosure was of general application. It was inappropriate to direct disclosure about findings of abuse in children act cases unless they came within the broad principles set out in Re: C.

18. In Re: R (Disclosure)[1998] 1 FLR 433, a probation officer was considered to pose a threat to his children as a result of personality disorders. He refused to accept the recommendation that he should see a consultant psychiatrist specialising in the field.

19. The father's chief probation officer applied for disclosure of the report. He had a duty to ensure that the officer's within his area of responsibility were suitable people to do the work. Kirkwood J. held that there was a strong public interest in the protection of members of the public, but there were conflicting considerations. They included the welfare of the children, the risk that the officer might lose his job, and the importance of maintaining frankness in children's cases.

20. Without hesitation he held that "the balance of the public interest questions…… fall heavily in favour of disclosure". Subject to safeguards, this was ordered.

21. In R v Local Authority and Police Authority in the Midlands ex parte LM[2000] 1 FLR 612, Dyson J, as he then was, considered an application for judicial review by an owner of a bus company which ran transport for school children. He had earlier been investigated for an indecent assault on his 7 year old daughter but not prosecuted. Also there had been an allegation of abuse when he had been employed by a local authority. The police and the local authority refused an assurance sought by him that they would not disclose these allegations. That decision was quashed.

22. Dyson J. held that "disclosure should be the exception and not the rule …….. the consequences of disclosure can be very damaging indeed". He considered that the following factors would usually have to be considered by the police and local authority in contemplating disclosure of allegations of child sex abuse to a third party. Firstly there was the state of belief in the truth of the allegations. "The greater the conviction that the allegation was true, the more pressing was the need for disclosure".

23. Secondly there were the interests of a third party in obtaining the information. "Again the more intense the legitimacy of the interest by that third party the more pressing the need for disclosure is likely to be". Finally there was the degree of risk posed by the person if disclosure was not made. Disclosure of allegations of child sex abuse were a substantial interference with a person's right to a private life (see Chief Constable of North Wales' case above).

24. In Re: L (Care Proceedings: Disclosure to Third Party)[2000] 1 FLR 913, Hogg J. had to consider disclosure to the UK Central Council for Nursing, Midwifery and Health Visiting (UKCC) in relation to a paediatric nurse who suffered from severe personality disorder. The medical evidence was that there would be concern for any child in her care. The question was whether this should be reported to UKCC.

25. It was a statutory body with an obligation to ensure that nurses were fit to practice and to protect vulnerable members of the public including children. There was statutory provision and instruments setting out how any referral was to be managed. There was, as in this case, no application by the UKCC who were unaware of the proceedings.

26. She concluded that she had to balance the position of the child and the position of a mother against the public interest of demanding protection from nurses who are, or who are potentially, unfit to practice. If there was to be a referral then the court had to be extremely careful to protect the identity of the child and she set out steps to achieve this. She had to consider the importance of encouraging frankness in children's cases.

27. She concluded that the balancing exercise was in favour of the public interest and that the referral should be made. It was because of the overall public interest of ensuring the protection so far as is possible of vulnerable children.

28. In Re: X (Disclosure of Information)[2001] 2 FLR 440, Munby J. considered applications for disclosure in respect of 2 children whom the father of one was alleged to have sexually abused. There were 4 other children not all his, not party to the proceedings in respect of whom as with the 2 children, allegations of sexual abuse were proved. The disclosure was limited to those people directly involved in the proceedings plus a small group of others to show that their evidence had been accepted, to enable them to obtain therapeutic help, and to make a claim for compensation. Disclosure was ordered.

29. It was held that the exercise of judicial discretion required consideration of the very wide range of factors and balancing those in favour of disclosure against those against it. The interests of the child though very important were not paramount. The most important factor in most cases pointing against disclosure, other than the interests of the child involved, was the importance of confidentiality in family proceedings and the frankness which it engendered.

30. Within that there was the interest of a particular child in maintaining the confidentiality and privacy of the proceedings. There was also the interests of litigants generally that, when seeking the protection of the court, they should not have publicity thrown upon their truly domestic affairs. Finally part of frankness was preserving the faith that those who had given evidence to a family court in the belief that it would be confidential should not be undermined.

31. In Re: C (Disclosure: Sexual Abuse Findings)[2002] 2 FLR 375, Bodey J considered an application by a local authority and the police to disclose findings made against a father to his current and future landlords. The father was a long-term paedophile who was held to be dangerous and manipulative, posing a considerable risk to any child.

32. In reaching his decision, Bodey J. held that in favour of disclosure was the welfare of other children generally. Against it was the maintenance of confidentiality in children's cases and the importance of encouraging frankness. There had to be "real and cogent evidence of a pressing need".

33. Against that there were the added risks of the father being made homeless, that the disclosure being not finite would be unjust and disproportionate, and that the landlords had neither a legal duty to protect tenants nor children. They had no experience in child protection work. There was the absence of any problems with the father's behaviour since his arrival at his present letting.

34. In particular he identified that the interests of the third party there was "not as high as would be the interest of a statutory or professional body with specific responsibilities for the protection of children". He ordered disclosure with proper limitations only to the present landlord.

S.12 of the Administration of Justice Act 1960

35. For the purposes of this judgment I have not considered the general prohibition on publication under that section. It has been helpfully summarised by Munby J. in Re: B (A Child)(Disclosure)[2004] 2 FLR 142. The impact on the section of the Family Proceedings Rules 2005 was considered by me in the case of Borough Council v A and others (Chief Constable Intervening) [2006] EWHC 1465.

Statutory duty and guidance in relation to care homes

36. Under Part V of the Care Standards Act 2000, a care worker is defined as "an individual who is or has been employed in a position which is such to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home" (s.80(2)(a)). A vulnerable adult is defined as "an adult to whom accommodation and nursing or personal care are provided in a care home" (s.80(6)(a)).

37. Under section 82, there is a duty on a person who provides care for vulnerable adults to refer a care worker to the Secretary of State if any of the following conditions are satisfied. They include circumstances where the provider has "dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult". There are also grounds where the worker has resigned or been transferred or suspended in appropriate circumstances.

38. Under s.7 of the Local Authority Social Services Act 1970, local authorities are required to act in relation to their social services functions under the general guidance of the Secretary of State. The Department of Health issued guidance "on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse". The guidance is called for short "No Secrets".

39. Under paragraph 1.2 –

"The aim should be to create a framework for action within which all responsible agencies work together to ensure a coherent policy for the protection of vulnerable adults at risk of abuse and a consistent and effective response to any circumstances giving grounds for concern or formal complaints or expressions of anxiety".

40. The guidance, under paragraph 3.1, states that it was an area of practice which required partnership working between statutory agencies to create a framework of inter-agency arrangements. The local social services authority was to take the lead in this. They were to establish mechanisms for developing policies and strategies for protecting vulnerable adults (see paragraph 3.6).

41. In July 2004 the Department of Health issued a Practical Guide for the protection of vulnerable adults in care homes. At the heart of it was a list. It covered that those care workers, who had harmed or placed at risk a vulnerable adult, would be banned from working in a care position with vulnerable adults. It did not apply to those already employed in care positions on 26 July 2004.

42. But, from that date, there was a statutory requirement on providers to refer care workers to the Secretary of State where the care worker has been guilty of misconduct which harmed or placed at risk of harm a vulnerable adult. There is a duty on this particular local authority under its own multi-agency policy and procedures to report all allegations of abuse of vulnerable adults to social services. No doubt most local authorities have similar provisions.

43. Furthermore there is a detailed scheme set out governing the action of the Secretary of State when information is provided in relation to a care worker. There can be a decision either not to proceed or to have a provisional inclusion on the list whereupon there is an opportunity to respond. There is also an appeal to the Care Standards Tribunal against any provisional listing.

44. Mr Perkins, for the local authority having drawn my attention to these provisions, submits that the mother is a care worker within the Care Standards Act. He argues that it is not necessary for the court to determine whether she has in fact come within the description of someone who has been guilty of misconduct which placed at risk of harm a vulnerable adult. That responsibility is for the Secretary of State. But that can only arise if the local authority concerned considers that the information arising out of my judgment may give rise to such misconduct.

45. The Applicant local authority, in order to comply with its obligations under No Secrets and the Practical Guide, he says are under a pressing need. That is to ensure that relevant information about the mother is passed on, in order for the relevant local authority and employer to discharge their statutory duties under the Care Standards Act 2000.

46. In support of this he argues that aspects of my judgment on the facts are highly relevant. I held the mother responsible for striking her daughter in the face, beating her with sufficient force to cause marks, and biting her thereby causing considerable pain and distress. When questioned H was clearly under pressure put on her by her mother not to admit the truth. She influenced H subsequently to write letters seeking to go home. Finally she invented a friend as the perpetrator and forged a letter from her.

Vulnerable adults

47. I accept of course that the mother is not working with children but with adults. But the important point is that they are vulnerable adults who may well not be able to look after themselves nor, as with a child, necessarily able to give a coherent account in relation to any harm that they suffer.

48. There are in my judgment many factors connecting the care of children with the care of vulnerable adults. Both are likely to be dependent upon their carer for their physical, psychological, and emotional support. They may well not be able to provide or to manage without such support, nor properly look after themselves. Their ability to draw attention to any harm caused to them could equally be reduced or non-existent.

49. Whilst there are limitations on the comparison, the standards to be expected of those looking after children may be no less than those looking after vulnerable adults. The skills required may be different.

50. Against this background, I have to consider whether the local authority should be permitted to disclose to another local authority that a care worker looking after vulnerable adults has been found by the court to have carried out the assault on their own 8 year old daughter to which I have referred. To determine this I must weigh the main advantages and the disadvantages in relation to disclosure.

51. From the authorities to which I have briefly referred I draw the following main considerations which I have to balance. They are in no particular order.

52. The impact of disclosure on H's welfare. This is an important factor but not paramount. In this instance there would be no benefit for H if there is disclosure. She is separated from her mother and there are no present plans for rehabilitation. Where there is no benefit for the child, I must be very cautious before ordering disclosure.

53. The consequences for the family if disclosure is made. There is a risk that Ms K could lose her employment. She may not readily find other employment. That is serious for her and potentially for H if she becomes aware of the effect on her mother.

54. The risk of publicity for the family and any child. If Ms K or H's name were revealed, that could be serious for H. It is a matter to be further considered in the light of assurances which can be provided. If otherwise public interest considerations prevail, risks of publicity are unlikely to prevent disclosure. It does not however prevent a proper inquiry into steps that can be taken to minimise such publicity even if it cannot be eliminated.

55. The importance of encouraging frankness in children's cases and the need for confidentiality. These are very important factors. The fear is that if someone is deterred by the risk of publicity from revealing what is happening to children, essential protection for these children may be lost. Parties to family cases and witnesses are entitled to expect privacy in relation to the proceedings, their evidence, and the judgment.

56. The gravity of the conduct and the extent of any risk to the public if there is no disclosure. I have, for the purposes of this balancing exercise, broadly equated the vulnerability and need for protection of elderly persons with that of children. If a mother can seriously harm her child without explanation, I consider that other children and vulnerable adults are or may be at risk from her and are entitled to be protected. Here there was a very serious assault on a child in Ms K's sole protection. The impact of that conduct might be met by a favourable risk assessment. That is a consideration for the bodies charged under the 2000 Act to consider and determine such matters. But on my findings, it is not for me to speculate about. I consider that there is a real and potent risk to vulnerable adults if disclosure is not ordered.

57. Any cogent evidence of a pressing need for disclosure. The considerations set out above provide a clear and pressing need. It is backed by the cogent evidence of my findings which gives the local authority both the right and the duty to disclose. Such disclosure also promotes cooperation between agencies in relation to vulnerable adults.

58. The interest of the other bodies in receiving the information. Here that interest is high because of the significant statutory obligations on the relevant local authority and if different, her employers. They are under a statutory duty to disclose information placing a vulnerable adult at risk. They require disclosure for that duty to be discharged.

59. The public interest in disclosure. In my judgment, this is a strong and potent force when all the other considerations are balanced. If I had been in any doubt after considering the matters I have set out above, and though disclosure is the exception not the rule, this would have tipped the balance. As it is, I consider that despite the potential disadvantages for the family, Ms K's private rights under Article 8 of the European Convention and her presumed opposition, I am strongly of the opinion that there should be disclosure in this instance. The public interest demands this. The need for public safety under Article 8 outweigh the mother's rights to respect for her privacy.

60. Public interest in disclosure is enhanced where there is not only a statutory duty on local authorities to share such information, but a clearly established procedure on how the receipt of such information should be managed. They may or may not decide to make a referral. If they do make such a referral, the protection of the care worker is fully set out and a proper appeal system laid down. It does not differ significantly from the duty on the GMC or the UKCC.

61. The local authority are not seeking to inform some individual or some association unfamiliar with the receipt of such details. They wish to inform one that is well familiar with it and for which a proper statutory procedure for the protection of vulnerable adults is clearly established. I am satisfied that this case falls more closely in line with those decided by Kirkwood J, Hogg J, and Bodey J to which I have referred. In balancing the various interests to which I have referred and exercising all due caution, nevertheless the decision comes down clearly on the side of disclosure for which there is a clear and potent argument.

62. That is not the end of this application. I need to be satisfied that confidential discussions between the Applicant local authority and Ms K's employers and local authority can sufficiently address the question of publicity.

63. I shall therefore give permission for limited and confidential disclosure for those purposes only. I shall give liberty to apply. I shall leave the Applicant local authority to draft the order for my approval.

64. Ms K should be informed of my decision. She should be informed of her right to attend any further hearing and be given due notice of it.