S v SP and CAFCASS

These proceedings in open court for an alleged contempt of court are brought by a man whom I shall refer to as S against CAFCASS and a CAFCASS children's guardian, hereafter referred to as SP, for the alleged unlawful disclosure of information relating to proceedings under the Children Act 1989. The context of this application is a long-running and difficult dispute involving the two children of S and his former wife in which there have been a number of different applications to the court and in the course of which SP was appointed as the children's guardian.

It is unnecessary to set out in full detail the history of these proceedings for the purposes of this judgment. Of relevance are the following matters. S is a registered sex offender and is subject to a sex offender prevention order until July 2017. S is also the subject of a protection from harassment order following a conviction for harassment of the mother. That order expires on 31^st March 2017. Under the order he is not permitted to contact or communicate with the mother or the children or to attend their house or attend their schools.

There have been ongoing concerns about S's mental health and its impact on the safety and welfare of the children. In March 2014 S tried to hang himself outside the family home. The police attended the property and found him with a ligature around his neck. On that occasion he was detained under the Mental Health Act section 136. Despite the making of the protection from harassment order, allegations of harassment continued and on at least one occasion S was taken into custody following alleged breaches of the order. As a result of these matters, S has had no direct contact with the children since March 2014.

In the course of the proceedings, an order for indirect contact was made permitting him to send letters and cards to the children. According to a report prepared by SP, however, S is not in agreement with indirect contact and has not maintained such contact with the children.

It is plain from all that I have read that the proceedings have left S, who has been acting in person for most if not all of the proceedings, with a strong sense of injustice, and he has made a series of professional complaints about the conduct of various agencies and individuals involved in the case.

On 4^th December 2015, S submitted a complaint to CAFCASS raising a number of concerns about SP's activities as children's guardian. On 22^nd January 2016 SP received a telephone call from a police officer and in the course of their conversation disclosed certain information about the proceedings. It is this conversation which is the subject of this application and I shall consider it in more detail below. S subsequently discovered from the police that SP had discussed the family proceedings with the officer and on 31^st January 2016 S lodged a further complaint with CAFCASS that sensitive information about him had been passed to the police without obtaining permission from him or the court. In a subsequent email he said, "Knowing that [he] had a history of self-harm and attempted suicide, CAFCASS was clearly trying to deliberately and maliciously cause [him] distress and anxiety so that [he] would try it again and, therefore, be out of everyone's lives and make everyone extremely happy."

On 5^th February 2016, CAFCASS wrote to the police and the family court stating that information had been disclosed without the court's permission, asking the police not to use the information, and seeking retrospective permission from the court to disclose it. I have not seen any response from the court or the police to this letter. Further correspondence ensued between S and CAFCASS and subsequently S, dissatisfied with the way his complaints to CAFCASS had been treated by CAFCASS, made a complaint via his MP to the Parliamentary and Health Service Ombudsman ["PHSO"].

Meanwhile, S, who had earlier withdrawn an application to the court, had filed another application seeking a child arrangements order, and in those proceedings SP as guardian on 29^th February 2016 filed a report incorporating a section 16(a) risk assessment. Her analysis concluded as follows:

On 2^nd May 2016, S filed another application in the court in form C2 which contained a number of applications including that "the court needs to open contempt of court proceedings against SP for breach of FPR 12.73." He similarly asked the court to open contempt proceedings against CAFCASS and the notice also included a request that the court opens contempt proceedings against others including the Local Authority Social Services, the police and the CPS. It also included an application for "full custody" of the children, disclosure of documents from the police and a number of other agencies, and permission to attend the children's school. S filed a further application in form C2 on 24^th June in which he raised a number of further complaints concluding with the following:

On 8^th July 2016, directions were given by the district judge in respect of a number of the applications and issues raised by S but not, so far as I can see, the contempt issue. The district judge listed the disclosure application against the police before Judge Bromilow.

Around the beginning of August 2016 (the date is unclear to me from the papers I have received) the PHSO upheld S's complaint about the way that CAFCASS had handled his complaints to them and made the following recommendations:

The PHSO also recommended that, within the next twelve weeks, "CAFCASS review their complaints procedure and behaviour policy to consider adding points such as the consideration of issuing behaviour warnings and equality and diversity factors. CAFCASS should also ensure that such policies are applied consistently and, where relevant, consideration of equality and diversity factors are clearly recorded."

The hearing before Judge Bromilow ordered by the district judge took place on 1^st August. On that occasion Judge Bromilow's order, insofar as relevant to this application, stated as follows:

Subsequently S indicated that he did wish to proceed with his contempt application and, for that reason, Judge Bromilow, who of course has direct experience of the work of the CAFCASS officer involved in the application, transferred the case to me.

On 13^th October, when sitting on circuit in Taunton, I gave directions to this effect:

On 15^th October S filed an application in accordance with Part 18 of the Family Procedure Rules stating, "I [S] of NFO intend to apply for an order (a draft of which is attached to this) that SP of CAFCASS committed a contempt of court under FPR 37 and CAFCASS for lack of policy because they deliberately disclosed inappropriate information to [the police] in breach of FPR 12.73." He did not as far as I am aware attach a draft order to the application but did enclose a statement to which I shall refer below. CAFCASS and SP subsequently filed affidavits and the bundle was duly served as directed. Unfortunately, because of other commitments, I was unable to hear the case on 2^nd December and, therefore, adjourned the hearing in Bristol to 8^th December. Informing S of this adjournment caused difficulty because S has refused to provide the local court with contact details. The only communication possible with S is via Ms Melanie Carew of CAFCASS Legal to whom S has provided his email address on condition that she did not pass it on to anyone including anyone else in CAFCASS.

Following the adjournment, S filed a skeleton argument in accordance with my directions. I shall consider the substance of his argument below but the document begins with the following observations about the adjournment:

The hearing proceeded on 8^th December as directed but S did not attend. The case was listed at twelve to assist him and others in travelling from Taunton to Bristol but the court waited until two pm before proceeding. I asked to be shown emails passing between Ms Carew and S with the details of S's emails redacted and I am satisfied that S was informed of the hearing date on 8^th December and, furthermore, has received all relevant documents including statements, affidavits and skeleton arguments and indeed a copy of the whole bundle prepared for this hearing. Furthermore, it seems to me plain from the passage in the skeleton argument to which I have referred he had decided not to attend the hearing.

The options open to this court were, therefore, (1) to dismiss the application forthwith, (2) to adjourn the application again or (3) to proceed in the absence of S. Bearing in mind that S, with clear knowledge of the hearing date, had indicated that he was not intending to attend the hearing and was not applying for an adjournment but, rather, had set out his arguments in full in his skeleton argument and supported by statements, I concluded that the right course was to proceed in his absence. That course it seemed to me was also fair and proportionate – fair to all parties including SP who has been subject to this application to commit her to prison for over seven months.

I now turn to the substance of the application. The application arises out of a conversation on 30^th January 2016 between SP and the police officer. The attendance note appended to SP's affidavit reads in full as follows:

I do not have an equivalent attendance note from the police but S has disclosed to CAFCASS Legal by email dated 30^th October 2016 an email he received from the police in the course of his complaint against the police officer. That email from another police officer (as I understand it, an officer investigating a complaint by S against the police officer who had conducted the investigation and spoken to SP) states inter alia that the officer concerned ("C")

It is the conversation that took place between SP and C on 30^th January 2016 that is the subject of S's application to the court. He contends that in that conversation SP was acting in breach of the rules governing disclosure of information relating to children's proceedings and, therefore, SP and CAFCASS are in contempt of court.

On an application for a contempt of court, the burden of proof rests on the applicant and the standard of proof is the criminal standard, beyond reasonable doubt. Section 12 of the Administration of Justice Act 1960, insofar as relevant to this application, provides "(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be a contempt of court except in the following cases, that is to say ... (a) where the proceedings ... (ii) are brought under the Children Act 1989."

Rule 23.73 of the Family Procedural Rules 2010, insofar as relevant to this application, provides as follows, "(1) for the purposes of the law relating to contempt of court, information relating to proceedings held in private, whether or not contained in the document filed with the court, may be communicated (a) where the communication is to ... (viii) a professional acting in furtherance of the protection of children ... (b) where the court gives permission."

S has filed two statements in support of his application or, rather, one statement and one document described as an "affidavit". In the statement dated 15^th October he states as follows;

In his "affidavit" dated 18^th October, (although I am unsure whether it technically amounts to an affidavit), S asserts that SP committed a contempt of court and as a result of the breach of FPR 12.73 he suffered significant psychological damage and irreparable damage to the relationship with CAFCASS and that as a result of the abuse he had suffered at the hands of CAFCASS he was obliged to withdraw his application to see his children as he was no longer prepared to suffer bullying at the hands of CAFCASS. He repeated further assertions in similar terms to those set out in the statement that I have already read.

In his skeleton argument in support of his application, S began by setting out his points on the adjournment which I have already quoted. He makes a number of further points all of which I have considered. Much of the skeleton argument covers the same ground as set out in his statement to which I have already referred. Of the actions of SP, he observes inter alia that, rather than accept responsibility for her actions, she has gone on to attack him for having the audacity of making a complaint against her, that at no stage did she ask C whether there were child protection issues nor did C tell her there were child protection issues in the course of the conversation. The only questions answered by SP during her conversation with C related to questions about S and that at no stage were child protection issues raised or discussed. He further said that SP subsequently submitted what he described as a "highly inflammatory and inaccurate risk assessment" in a deliberate attempt to discredit him.

As far as the actions of CAFCASS are concerned, he drew attention to the fact that the PHSO had found the actions and the proceedings of CAFCASS to be to unacceptable standards. He asserted that CAFCASS had failed to adhere to the recommendations of the PHSO so that the issue was now with the PHSO's senior management. He further asserted that CAFCASS had not taken any disciplinary action against SP, thereby condoning the disclosure and asserting that CAFCASS did not take its responsibilities seriously in ensuring his personal information and that relating to the court was kept private and secure.

As to the impact of these actions on him, he asserted that SP failed to consider the mental impact of the disclosure on him and repeated the assertions set out in his statement that it was clear that CAFCASS did not want him to have any contact with his children. He asserted that SP and his former wife had conspired to ensure that there was no contact and that SP had gone out of her way to destroy a loving relationship between father and children. He asserted that SP was unfit to continue as a social worker and should be dismissed and repeated his assertion that SP should receive a custodial sentence and CAFCASS a significant fine. I have considered all of these arguments carefully.

In skeleton arguments filed on behalf of CAFCASS and SP, both have identified procedural irregularities on S's part in bringing these applications but indicated that they anticipate that the court will wish to deal with the substance of the matter. I, therefore, put those procedural errors to one side.

On issues of substance, CAFCASS, in a legal submission filed by CAFCASS Legal, assert, first, that the information shared by SP with C did not come within the definition of "information relating to proceedings" as considered and defined by Munby J (as he then was) in Re B (A Child) Disclosure [2004] EWHC 411. It is CAFCASS's contention that the information amounted to no more than giving a general indication of the nature of the proceedings rather than more detailed disclosure. They further assert that the disclosure was not publication within the meaning of section 12 of the 1960 Act.

Their more substantial point, however, is that there was no breach of Rule 12.73 because C was acting "in furtherance of the protection of children" when he had the conversation with SP. CAFCASS submits that C was investigating a complaint of abuse which included prevention of contact and that this was inevitably an issue of child protection given that there were children in the family. They submit that the attendance note demonstrates that there was a child protection element to the conversation. Given the responsibilities of the guardian to safeguard and promote the welfare of children, it was appropriate for SP to discuss her overview of the case with another professional who had been brought into the dispute by the applicant himself making a serious allegation of domestic abuse. The sharing of information between professionals engaged in child protection is a fundamental principle of all enquiries following a serious case review. It is submitted that SP did no more than alert the officer to her concerns.

On behalf of SP, Ms Melissa Barlow makes a number of submissions citing authorities on the misuse of contempt proceedings asserting that this is an application driven in large measure by a man seeking retribution for a perceived injustice which has little or nothing to do with his application for contact. In view of my decision on the substantial issue in this case I do not think it necessary to consider this aspect of her submissions. On the substance, Ms Barlow effectively adopted CAFCASS Legal's arguments whilst adding that, even if the court were not satisfied that this was a straightforward case of proper disclosure under Rule 12.73, the applicant could not prove anything approaching the requisite standard that it was a deliberate or intentional contempt of court. Again it is unnecessary for me to consider that aspect of her submissions in view of the decision I have come to on the principal issue.

CONCLUSION: I do not accept the submission by CAFCASS Legal, adopted by Ms Barlow, that this disclosure was not a disclosure of information relating to proceedings. In my judgment, it went further than the disclosure of the general nature of the dispute and was in truth information of some details of the proceedings. The key issue to my mind is whether SP acted in breach of the rules, i.e., whether her disclosure of information fell within what is permitted under Rule 12.73. The phrase, "a professional acting in furtherance of the protection of children," must, in my judgment, be given a broad interpretation. Had the words in the rule been to the effect of "in connection with an investigation into an allegation of child abuse," the disclosure permitted would have been much narrower but "in furtherance of child protection" plainly permits the disclosure of information by CAFCASS to a police officer in a conversation that arises in the course of investigation by the police including acts of domestic violence or abuse within the family.

This case involved a history of allegations and cross-allegations between the parents and a conviction for harassment and the impact of those matters on the children, all of which plainly give rise to harm or risk of harm to the two children of the family. As she set out in her Rule 16.4 risk assessment quoted above, the guardian was concerned that S's behaviour, including his hostile behaviour towards the mother, was continuing to have an adverse effect on the children.  The police's investigation into S's complaint concerning the mother's alleged abuse of him inevitably involved consideration of the historic issues between the parties and the impact on the children. The scope of the police investigation clearly involved issues which impinged on the children's safety and welfare.

A series of public inquiries in this country have identified the need for agencies to work together in order to protect children. That is the context in which the Family Procedure Rules have to be interpreted and applied. Too narrow an interpretation of the rules would, in my view, jeopardise the welfare of children. It is axiomatic that the administration of justice and the protection of children requires disclosure of information between professionals to ensure that children are protected. In this case the police were investigating allegations of abuse between adults in a family and as part of the investigation asked the CAFCASS officer for details of the background. Part of the purpose of the conversation, in my view, was plainly the furtherance of child protection. The dispute between the adults, the history of harassment by S leading to the restraining order and the further allegations by S against the mother plainly raised concerns of professionals about the risk of harm to the children.

In my judgment, the police officer investigating allegations against the mother in the context of the history of harassment by S of the mother and the concerns of the impact of these matters on the children was acting in furtherance of child protection within the meaning of Rule 12.73. I, therefore, consider that, in the circumstances of this case, the guardian was not acting unlawfully by disclosing information to the police in the telephone call on 30^th January 2016. On the contrary, I find that in disclosing the information she was acting in accordance with Rule 12.73(1)(viii). Accordingly, neither SP nor CAFCASS is in contempt of court and S's application is dismissed.

This case has demonstrated, however, that there is a measure of uncertainty as to how FPR 12.73 operates in these circumstances. It is plainly desirable that professionals acting in this field should have clarified as to the interpretation of the rules. I respectfully invite the Chief Executive of CAFCASS to consider whether further guidance for guardians and CAFCASS officers is needed. In cases of doubt, professionals should always, as a precautionary step, apply to the court for permission to disclose information.

I conclude my judgment by saying that, whilst recognising the depth of S's feelings about this case and acknowledging the problems he has suffered, I have no evidence to justify his vituperative allegations against SP. From what I have read, it seems plain that she has acted conscientiously and professionally with a proper focus of the welfare on the children caught up in this dispute.