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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Re M (Disclosure: Children and Family Reporter) [2002] EWCA Civ 1199 (31 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1199.html Cite as: [2002] EWCA Civ 1199, [2002] 4 All ER 401, [2002] 3 WLR 1669, [2002] 2 FLR 893, [2003] Fam 26, [2003] Fam Law 96, [2002] 3 FCR 208

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IN THE COURT OF APPEAL
CIVIL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 July 2002

THORPE LJ:

1. Doubts and concerns have arisen concerning the duty of a children and family reporter (CFR) in the service of the Children and Family Court Advisory and Support Service (CAFCASS) who, in the course of inquiries that necessarily precede the filing of a report, encounters evidence or suspicion of child abuse. Is the CFR free to report concerns direct to the relevant social services department or must the CFR report concerns to a judge of the court that directed the report in order to seek his directions and particularly his permission to report to social services? We are told by Mr Spon-Smith, who represents CAFCASS as the principal appellant, that a CAFCASS survey demonstrates that the CFR is required to apply to the judge for permission only in the counties of Hampshire, Essex and Norfolk.
2. The chairman of the Portsmouth Area Child Protection Committee wrote to Her Honour Judge Davies, the designated judge of the Portsmouth Care Centre, on 13 March 2002 to express the considerable concerns of the members of the committee at this restraint on the duty of the CFR to collaborate in the protection of children. By her response of 22 March, Her Honour Judge Davies acknowledged the difficulty which she had discussed with the liaison judge for the circuit. She said that the matter would be referred for consideration at the President's annual conference to take place in the second half of May. The issue had in fact already been brought to Her Honour Judge Davies by the local CAFCASS manager and Her Honour Judge Davies had prepared a memorandum dated 11 February which drew attention to the conflict between para 4.19 of the 'National Standards for Probation Service Family Court Welfare Work' and r 4.23 of the Family Proceedings Rules 1991. Her Honour Judge Davies sensibly suggested that, on the basis that statutory provisions required prior permission, arrangements needed to be made locally to set up a duty judge roster for the determination of urgent applications replicating similar arrangements on foot in Oxfordshire and Buckinghamshire.
3. In the midst of these developments a contested case was developing in the S County Court to settle disputes between A and LM regarding their only child, L, born on 11 February 1997. Her parents had married on 14 August 1996 but separated in April 1999. L had moved to live with her father in S on 7 September 2001. On 10 February 2002 her mother removed L from her father's care at the conclusion of a period of staying contact. On 25 February she applied for a residence order but on 28 February the district judge ordered L's return to her father's care by 6.00 pm on 1 March. At the same time he directed that a report be filed by a CAFCASS officer by 23 May. On 26 March His Honour Judge Rudd heard the mother's interim residence order application and, as a result of a firm indication given during the course of the mother's evidence, a consent order was negotiated confirming the status quo. On 30 April Mrs Middleditch, the experienced CFR to whom the case had been allocated, interviewed both the mother and her sister. During the course of the conversation they informed Mrs Middleditch that L had been upset by seeing the father and his girlfriend naked and kissing in the bathroom and by seeing her father urinating in her presence.
4. No doubt mindful of the local debate, Mrs Middleditch on the same day sent an email to His Honour Judge Rudd informing him of the allegations and suggesting that there might be a need for investigation by social services. On 3 May she sent a chaser by fax and email. In the fax she stated:

'I interviewed the mother and the maternal aunt on 30 April 2002 and there were serious allegations made which may need referral to social services.

In the light of the above allegations I have concerns about the welfare of the child and am therefore seeking directions from the court in respect of whether or not this matter should be referred to the social services department for further investigation.'

5. His Honour Judge Rudd endeavoured to set up a hearing on notice to the parties for 9 May. On the day the judge managed to assemble Mrs Middleditch together with counsel for both the mother and the father. He heard briefly from Mrs Middleditch who hardly expanded her previous reports to the judge. He then heard submissions from counsel and delivered his judgment. He refused Mrs Middleditch leave to disclose the material and granted permission to appeal to her and to the mother.
6. In his judgment His Honour Judge Rudd told the story of a case he had previously experienced in which the CFR had taken an allegation by a mother that a father had touched his son's penis to the local authority with uncontrolled adverse consequences. His Honour Judge Rudd explained that he had therefore raised the matter with Her Honour Judge Davies suggesting the requirement to seek permission and the introduction of the system to ensure that the judge could be reached without delay. That introduction, said His Honour Judge Rudd, had led to the letter of 13 March from the chairman of the Portsmouth Area Child Protection Committee. His Honour Judge Rudd continued by considering the arguments advanced in that letter as well as the local practice guide, 'Hampshire Family Court Welfare Child Protection Procedure 2001'. The judge criticised policy and practice statements in both documents in language that is more forthright than diplomatic. In any event his criticism is preceded by a succinct statement of his conclusion on the point of principle. He said:

'The fundamental question in this case is: is leave needed? I have no doubt in saying that leave is needed to disclose to third parties, material contained in the course of investigations. The report is to a judge at his instigation, and if the CAFCASS officer wants to disclose information to third parties, then to the judge must he or she come and ask for leave.'

7. The judge then turned to the facts of the case before him to determine whether or not to grant permission. In concluding that permission should be refused he explained himself at some length. First, he raised questions as to the mother's credibility. Next he questioned whether, even if the allegations were true, they demonstrated that L was at risk of harm. Finally he pointed out that earlier allegations by the mother had been investigated by social services and found to be baseless. He also pointed out that the father's refutation of earlier allegations had been corroborated by L's doctor. He pointed out that he was in a better position to exercise a judgment than Mrs Middleditch since he was not subject to the local procedures that bound her and could look at the issue in the context of the whole of the pending proceedings.
8. Although on what the judge rightly described as the fundamental point his reasoning is extremely brief, he knew that he had the support of the designated judge and further that the local CAFCASS service had consulted CAFCASS Legal who had confirmed that the judge's permission was required.
9. Before us the case has taken a different emphasis. The permission granted to Mrs Middleditch has been assumed by CAFCASS. CAFCASS has not adopted the opinion earlier expressed by its legal branch. Mr Spon-Smith's primary submission is that there is nothing either in statute or in rules of court or in the inherent relationship between judge and CFR that compels the CFR to seek permission. The CFR has an independent professional duty to protect children at risk and exercises an independent discretion as to whether and what to report to social services. He submits that the CFR has a right to consult with the judge in cases of difficulty but is under no obligation to do so. He accepts that if the CFR has reported concerns to social services he should take the first available opportunity to inform the judge.
10. Mr McFarlane QC, for the mother, adopts and expands upon Mr Spon-Smith's submissions. Mr Everall QC, for the father, identifies three questions for determination:

(1) is permission required;

(2) upon what principles should it be granted; and

(3) was the judge plainly wrong to refuse permission?

11. In stating my conclusions on the comprehensive and skilful submissions from the Bar, I will concentrate on Mr Everall's argument since it is he who asserts the existence of statutory, alternatively common law provisions, which he submits prohibit the CFR from making a report to the social services without judicial permission.
12. I start with the relevant statutory provisions. The Criminal Justice and Court Services Act 2000 (CJCSA 2000) created the CAFCASS service with effect from 1 April 2001. CJCSA 2000 effected consequential amendments to the Children Act 1989 (the 1989 Act). Section 7 of the 1989 Act, as amended by the former, provides:

'(1) A court considering any question with respect to a child under this Act may—

(a) ask an officer of the Service; or

(b) ask a local authority to arrange for—

(i) an officer of the local authority;

(ii) such other person (other than an officer of the Service) as the authority considers appropriate,

to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.

…

(3) The report may be made in writing, or orally, as the court requires.

…

(5) It shall be the duty of the authority or officer of the Service to comply with any request for a report under this section.'

13. An officer of the Service has the same meaning as in the CJCSA 2000 where it is defined in s 11(3). An officer of the Service asked to prepare a report under s 7 is, by virtue of r 4.1(1) of the Family Proceedings Rules 1991 (FPR 1991) known as a 'children and family reporter'.
14. The powers and duties of the CFR are set out extensively in the FPR 1991, rr 4.11 and 4.11B. It is unnecessary to set those rules out in this judgment: enough to record that by r 4.11(2) the CFR:

'… shall make such investigations as may be necessary … and shall, in particular—

(a) contact or seek to interview such persons as he thinks appropriate or as the court directs;

(b) obtain such professional assistance … which he thinks appropriate or which the court directs …'

15. Mr Everall naturally submits that the privacy of 1989 Act proceedings is hallowed and universally recognised. No one may breach that privacy without the judge's permission. Currently that privacy is safeguarded by s 12 of the Administration of Justice Act 1960, s 97 of the 1989 Act and r 4.23 of the FPR 1991.
16. I will consider those statutory provisions in turn. Section 12 of the Administration of Justice Act 1960 provides:

'(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—

(ii) are brought under the Children Act 1989 …'

17. Section 97 of the 1989 Act provides by subs (2):

'No person shall publish any material which is intended, or likely, to identify—

(a) any child as being involved in any proceedings before … a county court … in which any power under this Act may be exercised by the court with respect to that … child …'

18. Finally I refer to r 4.23 of the FPR 1991, as amended, which provides:

'(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to—

(a) a party,

(b) the legal representative of a party,

(c) the children's guardian,

(d) the Legal Aid Board, or

(e) a welfare officer or children and family reporter,

(f) an expert whose instruction by a party has been authorised by the court, without leave of the judge …'

Mr Everall submits that it is these provisions which ensure the privacy of proceedings and prevent the CFR from breaching that privacy, whatever the motivation.

19. On this fundamental issue I accept the rival submissions of Mr Spon-Smith and Mr McFarlane. Rule 4.23 expressly protects the confidentiality of documents. I do not think it is justifiably extended by the submission that the gist of the interview on 30 April would subsequently be included in the report to be filed with the court. This issue was considered by this court in the case of Re G (Social Worker: Disclosure) [1996] 1 WLR 1407, [1996] 1 FLR 276. Butler-Sloss LJ, at 1414 and 282 respectively, set out the possibility of a narrow construction of r 4.23 confined to documents and a wider construction extended to material that would or might end up on the court file. She said at 1415 and 283G respectively:

'I would on balance and in the absence of argument give the more restrictive interpretation to r 4.23 and limit it to documents held by the court in the court file. I doubt that it extends to documents created for the purposes of the proceedings even if intended to be filed with the court, since they may not in fact become part of the court file. It is important that the rule should not be widely and loosely interpreted so as to bring within its ambit information at a stage when I am sure it was not intended to be covered and which would be contrary to wider considerations of the best interests of the child.'

20. Following that approach it can, in my opinion, hardly be argued that the CFR is prevented from reporting to social services concerns resulting from investigations simply because at a later date they will be recorded in the report to the judge.
21. Both ss 12 and 97 raise the same question: what is meant by publication? Mr Spon-Smith offers us the definition in the Shorter Oxford Dictionary. Mr Everall counters with Arlidge, Eady and Smith on Contempt (Sweet and Maxwell, 2nd edn, 2000) at paras 8-79. The authors there submit that the statutory language should be given the wide interpretation of the law of defamation: it should not be confined to information communicated through the media but should extend to private communications to individuals. I do not read a narrower sense in the dictionary definition and would accept that a conversation between the CFR and another individual might amount to publication, but I cannot accept that a CFR publishes, and thereby exposes himself to a risk of contempt, when he reports concerns to the relevant statutory authority charged with the collection and investigation of material suggestive of child abuse. Such a communication between two professionals exchanging information in the course of their respective functions, each acting in furtherance of the protection of children, does not constitute a publication breaching the privacy of contemporaneous Children Act proceedings.
22. I would not however accept Mr Spon-Smith's alternative submission that the communication would not amount to 'information relating to proceedings' within the meaning of s 12. In my opinion, since the mother's case for the reversal of the interim order rests upon her allegations of the father's failings by way of both commission and omission, the material would fall within the provisions of s 12 if published. Mr Everall aptly cites the opinion of Geoffrey Lane LJ in Re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58, at 105 where he said:

'The object is to protect from publication information which the person giving it believes to be protected by the cloak of secrecy provided by the court. "Proceedings" must include such matters as statements of evidence, reports, accounts of interviews and such like which are prepared for use in court once the wardship proceedings have been properly set on foot …'

23. Mr Everall's alternative argument rests on the inherent relationship between the judge and the CFR. This, of course, was the foundation for His Honour Judge Rudd's conclusion. Mr Everall emphasises that the CFR has no role other than in relation to family proceedings and his role lasts only while the proceedings continue. Insofar as Mr Spon-Smith seeks to rely upon the decisions of this court in Re G (Social Worker: Disclosure) [1996] 1 WLR 1407, [1996] 1 FLR 276 and Re W and Another (Minors) (Social Worker: Disclosure) [1999] 1 WLR 205, sub nom Re W (Disclosure to Police) [1998] 2 FLR 135, Mr Everall reminds us that there the court restricted its decision to the function of the social worker in public law proceedings. In Re W Butler-Sloss LJ, at 213 and 143B respectively, expressly distinguished the role of the court welfare officer when she said:

'… on this appeal, we are concerned solely with documents held by and information known to social workers and the decision has no application to the wholly different position of a guardian ad litem or indeed a court welfare officer appointed for the purposes of court proceedings.'

24. The special status of the court welfare officer was defined by Ormrod LJ in the case of Cadman v Cadman (1982) 3 FLR 275 when he said at 277F of the court welfare officers:

'They are not witnesses in the case at all; they are officers of the court, appointed to make reports to the court. They may or may not give evidence and submit themselves to cross-examination. It is a matter entirely for the discretion of the judge as to whether he thinks that would be an appropriate course or not. It does not, by any means, follow that in every case the court welfare officers are to be treated as witnesses. Whatever they are, they are not witnesses. They are independent officers of the court appointed to assist the court.'

25. In other judgments it has rightly been said that they are the eyes and ears of the court able to go where the judge cannot go and to record for him and report to him conversations, observations and impressions which may have a decisive effect on outcome.
26. All that I accept but in my judgment it does not follow that the CFR acts always under the direction of the judge. If that were ever so, and the history of the evolution of this invaluable service is recorded in the judgment of Butler-Sloss LJ in the case of H v H (Minor) (Child Abuse: Evidence); K v K [1990] Fam 86, sub nom Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) [1989] 2 FLR 313, at 110 and 333 respectively, it is certainly not so now. The CFR is a member of a newly created service, the success of which depends in part on the support of other disciplines including the judiciary. Manifestly the CFR acts independently and exercises an independent discretion as to the nature and extent of his investigations and inquiries and no less in the manner in which he approaches them. He is bounded by only the obvious requirements to cover all the relevant ground and to be even handed. Absent any statutory prohibition on the discretionary communication from CFR to social worker I would not be prepared to find one in the common law or in the inherent nature of the function of the CFR or in the inherent relationship between the CFR and the court. Over the course of the last decade the crucial importance of interdisciplinary collaboration in the family justice system has been more plainly recognised. Disciplines are not ranged hierarchically. Hopefully self-importance does not figure in the culture. The inter-dependence of the disciplines should preclude that. The relationship between the judge and the CFR is most obviously a collaborative one. It is through the CFR that the judge most evidently executes that part of his function which is inquisitorial. The CFR in turn depends upon the judge to give due weight in the scales of justice to the outcome of his investigations. Both judge and CFR are united sharing the same ultimate objective, namely the protection of children and the advancement of their welfare. In pursuit of that overriding objective each must be free to operate independently as well as collaboratively and independent operation includes the exercise of an independent discretion.
27. There is another consideration that has some indirect bearing on the issues raised by this appeal. It is the need for communication between the family justice system in private law proceedings and the local authority in discharging its statutory functions for the protection and care of children at risk of significant harm. A case that illustrates the point is Re A and B (Minors) (No 2) [1995] 1 FLR 351. The court may have requested reports under ss 7 or 37 and thereby achieved a bridge between the proceedings and the investigation and management of the local authority. But in many instances no such bridge will be in place. The local authority may wish to establish what is on foot in the court proceedings. The judge may wish to know what the local authority is up to. Clearly the CFR might be the voice. As an officer of CAFCASS he has the independence and the stature either to make inquiries of the local authority or to provide information as to the present state and likely future progress of the proceedings.
28. To the first question posed by Mr Everall his answer is that leave is required save in emergency. The appellants' answer to the same question is that leave is never required although in borderline cases the CFR will in practice refer to the judge before acting and in all cases report to the judge after acting. Since I accept the appellants' submissions that leave is not required as a matter of law we must take this opportunity to offer some pragmatic guidelines.
29. First, and to state the obvious, we are only here concerned with private law proceedings. The protection of children from significant harm is ordinarily achieved or attempted through public law proceedings. However, allegations or investigations made after the initiation of private law proceedings not uncommonly reveal evidence that might satisfy the significant harm test contained in s 31 amidst the public law provisions of the statute. This interface between private and public law proceedings has statutory recognition. I have already cited s 7 which, as well as allowing the judge to request a report from a CFR, also allows him to request a report from social services. In more serious cases the judge has the power under s 37, where it appears to him that a care or supervision order may be appropriate, to direct the local authority to investigate the circumstances of the child. Such a direction triggers the local authority's duty to consider during the period of investigation applying for a public law order or providing services and assistance. Finally under Part V (Protection of Children) s 44 empowers the court to make an emergency protection order with respect to a child on the application of any person.
30. Accordingly in exercising an independent discretion the CFR should be mindful of the powers of the judge within private law proceedings to initiate investigation under s 37 and thereby to oblige the local authority to consider the initiation of public law proceedings and to explain to the judge any decision not to initiate public law proceedings. The court welfare officer also needs to have regard to the power of the judge to make an immediate intervention under s 44 in an emergency. Given that statutory framework the CFR must always consider the option of taking his concerns to the judge in the case rather than to the local authority.
31. The better course will inevitably depend upon the facts and circumstances of the individual case. What the CFR may have unearthed is unlikely to be the whole picture. Other agencies will be reporting to the local authority who may therefore be in possession of much more extensive information drawn from wider sources. It may therefore be safer for the CFR to take his piece of the jigsaw to fit into others already in the possession of the local authority. The addition of his piece may be of as much value to the local authority as sight of their pieces will be to him.
32. Equally much may depend upon the state of the proceedings. If they are only just beyond the stage of issue and the only existing order is the directions order requesting the report, there will be no accumulated judicial experience. At a much later stage in the proceedings there may be a judge who has considerable knowledge of the family and insight into the parties built up over the course of previous hearings, some of which may have been extensive and been decided on oral evidence.
33. Next I would draw a strong distinction between cases in which the CFR listens to an allegation from a party of neglect or misconduct by the other party, especially when the allegation is made by an applicant for residence order or an extended or defined contact order. Those allegations will either have been already recorded in statements filed with the court or will be so recorded. It is of course the function of the CFR to record those allegations, to weigh them and, perhaps, to express a view on their cogency. But in the end it is the function of the judge to investigate such allegations by the process of trial and to determine them as a prelude to his conclusion. The party raising the allegations can of course apply without notice or on short notice if the circumstances warrant it to a judge who holds the wide powers that I have identified. Allegations made to the CFR by a party during the course of a pre-arranged meeting are unlikely to have the element of urgency. There is an obvious danger that the party may seek to involve the CFR manipulatively, hoping that the allegations will acquire additional significance or credence if relayed to social services through the medium of the CFR.
34. This case seems to illustrate that possibility. The mother raised allegations against the father in her statement of 25 February. Accordingly, the father sought immediate information from the local authority to put before the district judge on 28 February. The fax report from S Social Services recorded that they had received several communications from the mother raising concerns that L was not being properly fed, that the father insisted that L slept in his bed, that the father refused to take L to the GP, that the father was aggressive to L, that the father used foul language about the mother in L's presence, that the father left L at home on her own and finally that the father disrupted L's sleep and routine by taking her to his place of work. The writer reported that he had carried out an initial assessment following Department of Health guidelines. He had visited the home and spoken to L on her own. He had spoken to L's school and to the family GP. He concluded: 'the outcome of my assessment was that I could find no evidence to support any of the concerns raised by (the mother)'. This report was not only on the court file but was also exhibited to the father's statement of 21 March 2002. It was therefore known to Mrs Middleditch when interviewing the mother on 30 April. Mr McFarlane freely conceded that the mother's concern expressed to Mrs Middleditch had not been referred to S Social Services because the mother was disappointed with the outcome of her previous complaints and therefore sought a more positive response from Mrs Middleditch. Furthermore the mother has still not introduced this allegation into the pending proceedings, which after all provide the primary arena. Although her solicitors, Messrs Bindman & Partners wrote to the father's solicitors on 21 May dating the incident reported to Mrs Middleditch to the 19 April and adding two further complaints of failure to maintain proper sexual boundaries, said to have occurred on 3 and 4 May respectively, none of the three episodes has yet been introduced into evidence despite the fact that the case had been given a trial date of 2 July.
35. Finally a most important consideration for the CFR is that the party interviewed and raising the allegation not only has the opportunity to bring her concerns for investigation and trial by the judge but that she has equal opportunity to go herself to social services at any time. That a party was free to involve social services without permission of the judge in the concurrent private law proceedings was common ground at the Bar. In my opinion that concession by Mr Everall weakened his primary contention for the absolute privacy of proceedings: absent emergency. Accordingly in the situation posited at para [33] above I conclude that the CFR would be wiser to avoid direct involvement with social services. If exceptional circumstances seemed to make a referral necessary, prior discussion with the judge would seem to me to be little more than an acknowledgement of their collaborative relationship.
36. Different considerations will of course apply where the concerns of the CFR arise from the words of the child at interview, whether or not spoken in confidence. In such circumstances the CFR must consider whether or not the material is fresh or whether it has been previously ventilated. He must consider the gravity of the risk as well as the gravity of the harm. He must consider how urgent is the need for investigation and protection.
37. Much the same considerations will apply where the CFR sees, hears or senses danger, or the possibility of danger, to the child in the course of a home visit, ordinarily to the home of the primary carer but perhaps to the home of the absent parent during a contact visit. In these situations the parent that the CFR is visiting is not making allegations but is likely to be denying, concealing or suppressing signs of risk and danger. Circumstances may call for urgent action. Circumstances may not allow the delay in an application to the judge, even where special arrangements exist. Furthermore it may seem important not to warn the parent of impending investigation and intervention.
38. In all these cases where the CFR's suspicions are raised by an interview with the child alone or by a home visit, it is self-evident that he must exercise an independent professional judgment that reflects the relevant circumstances so far as they are within his appreciation. There may be circumstances in which the decision will be to apply immediately to the judge. There may be circumstances when his instinct is to go direct to social services without delay. As a matter of practice the exercise of that discretion cannot be fettered by any rule or practice requiring prior referral to the court.
39. I should record that in the course of his submissions Mr Spon-Smith relied strongly upon Home Office National Standards for Probation Family Court Welfare Work, as well as Department of Health, Working Together to Safeguard Children HMSO 1999 and the Hampshire Family Court Welfare Child Protection Procedures. He also referred to Protecting Our Children, the combined child protection procedures for the Hampshire, Portsmouth, S and Isle of Wight area child protection committees. Suffice it to say that within those publications there is abundant material justifying the submission that the CFR is an independent professional uninhibited by judicial supervision. I do not consider it necessary to review those publications in any detail given the conclusion that I have reached on the first question raised by the appeal. The single paragraph most cited during argument has been para 4.19 of the 'National Standards' publication of 1994. It reads as follows:

'If during the course of the inquiries it becomes apparent that a child may be at risk of being significantly harmed, the concern must be followed up and be reported immediately to the police, social services or other appropriate agency in accordance with local child protection procedures. The court must be advised of the situation and the officer should suspend the inquiry pending further directions from the court.'

40. In my opinion the majority of that paragraph is well written. Only the final phrase goes too far. For the independent discretion of the CFR must still recognise that the judge alone manages the proceedings in his court. Thus the decision to suspend a requested inquiry must be the decision of the judge and not of the CFR. That may be seen as a quibble since the application to the judge for suspension is but part and parcel of the collaborative relationship.
41. Another reason that I do not further consider the professional standards publications cited by Mr Spon-Smith is that they are in the main now history. National standards for CAFCASS have yet to be formulated. Indeed only in May 2002 did CAFCASS publish for consultation a draft policy on national standards.
42. Finally these conclusions must be applied to the determination of the present appeal. On the fundamental issue the judge reached the wrong conclusion, albeit understandably in the circumstances. He no doubt conceived that he was doing no more than upholding agreed local practice which had the support of CAFCASS Legal. Nevertheless he was in my opinion undoubtedly correct in his discretionary judgment that the statements made to Mrs Middleditch at the interview on 30 April did not require her to act as a conduit between the mother and S Social Services. However in my opinion he should more safely have founded that conclusion upon the simple fact that it was open to the mother not only to herself report L's words to social services but also to introduce them to supplement the allegations which she had already put in evidence. Those allegations would then be tested and determined at trial. It was unfortunate for the judge to give the clear impression to the mother that he doubted her credibility and motivation in raising these fresh allegations. After all at that stage he had not seen the allegations formulated nor had he had any oral evidence in support. Some of his comments have inevitably given the mother the impression that he has pre-judged the case against her.
43. Since in this judgment I offer guidance to those who do not of choice read the law reports I will endeavour a brief summary:

(i) The relationship between the CFR and the judge is collaborative. Each has distinct functions and responsibilities in the discharge of which each exercises independently both judgment and discretion.

(ii) If in the course of inquiries in private law proceedings the CFR is alerted to the possible abuse of a child he should consider the following analysis:

(a) Is this either:

(i) a discovery or direct report; alternatively

(ii) is the CFR listening to an account of someone else's discovery or to a second-hand report?

(b) If the latter:

(i) Has the information been relayed to social services or the police already?

(ii) Is there a history or pattern of past complaints?

(iii) How plausible is the report?

(iv) Was the informant a party to the proceedings?

(v) If yes, has he put this statement in evidence?

(c) Would the abuse, if established, amount to significant harm or the risk of significant harm within the meaning of s 31?

(d) Is there a need for urgent action? What are the risks of delay?

(iii) The answers that this analysis elicits should help to decide the appropriate course of action. It will seldom be necessary for the CFR to relay second-hand reports to social services. Furthermore such reports are unlikely to be urgent. Accordingly there will ordinarily be no obstacle to consultation with the judge before taking any action.

(iv) The CFR should always be alert to the danger of being enmeshed in the strategy of the manipulative litigant. The independence and impartiality of the CFR are crucial and if one party perceives that the CFR has taken sides with the other the judge's ultimate task, both to promote the welfare of the child and to impress the parties with the fairness of the proceedings, is rendered more difficult.

(v) Where the CFR makes a discovery or receives a direct report an immediate report to social services or to the police may be indicated. In such a situation the CFR must exercise an unfettered independent discretion. The only rule is that he must inform the judge of the steps he has taken at the earliest convenient opportunity to enable the judge, who controls the proceedings, to consider the impact of the development and the need for consequential directions.

44. In short I would allow the appeal to the extent that it was demonstrated that the judge erred on the fundamental issue. It is probably unnecessary to set aside the order below. It has served its limited purpose. Counsel have agreed directions designed to reinvigorate the proceedings with a postponed date of trial before another judge of the court.

WALL J: Wall J

45. I have had the advantage of reading Thorpe LJ's judgment in this case in draft. I am in complete agreement with it, and would allow the appeal for the reasons he gives. I add a judgment of my own for three principal reasons: (1) because the issues raised by the appeal are important both for the emergent CAFCASS and for coordinating the manner in which allegations of child abuse are investigated within the family justice system; (2) because we are disagreeing with an experienced circuit judge who was implementing local policy, and whose instinct about the underlying facts of the case may turn out to be correct; and (3) out of deference to the well-structured and cogently argued submissions of Mr Mark Everall QC and Mr Douglas Taylor, who appear for the father of the child concerned in the case. I gratefully adopt Thorpe LJ's recital of the facts.

The fundamental question

46. The fundamental question raised by the appeal can be formulated in this way: do CAFCASS CFRs who have been asked by the court to report to it under s 7 of the 1989 Act in private law proceedings 'on such matters relating to the welfare of the child as are required to be dealt with in the report', need the court's permission before they may communicate to the social services department of a local authority information about the child acquired in the course of their inquiries, which, in the professional judgment of the CFR, raises child protection issues and may require the local authority to conduct an investigation under s 47 of the 1989 Act?
47. An alternative way of putting the same question, which, in my judgment, better helps to provide the answer is the following. Is the communication of information between a CFR and a child protection social worker in the circumstances, described at para [46] above, 'publication' of that information within s 12(1)(a) of the Administration of Justice Act 1960 (AJA 1960) or within s 97(2) of the 1989 Act? If it is, the CFR who 'publishes' such information without first obtaining the permission of the court is in contempt of court under AJA 1960 and may, technically, have committed a criminal offence under s 97(6) of the 1989 Act. If the answer is 'no', all questions of contempt and criminality disappear, although the relationship between the CFR, the court and the social services department of the local authority remains an issue which needs to be addressed.
48. It is surprising that there is no authority directly on the point. The nearest one which comes to it is the decision of Ward J (as he then was) in Oxfordshire County Council v P [1995] Fam 161, [1995] 1 FLR 552, at 170 and 561 respectively, in which the judge held that a guardian ad litem in care proceedings was in 'technical not substantial' breach of her duty of confidentiality when she passed on to a local authority duty social worker an admission made to her in confidence by the mother of the child who was the subject of the proceedings that she had been responsible for non-accidental injuries to the child. At 170 and 561 respectively, however, in a passage which is clearly obiter, Ward J added:

'The cloak of confidentiality is not lifted when there is an exchange of information relating to the proceedings passing between the parties in the proceedings if the information remained confidential to the proceedings.'

49. The focus of Oxfordshire County Council v P, however, was not on the guardian's actions in disclosing the mother's admission to the duty social worker, but on her subsequent actions in being interviewed by the police and making a statement on which the police intended to rely in a prosecution of the mother. The issue for Ward J was whether or not she should be replaced on the basis that the mother could no longer co-operate with her. Ward J granted that application. He also went on to observe (again obiter) that social services were 'strictly speaking' not entitled to pass the information on to the police because it was information obtained by an officer of the court for the court and only the court was entitled to allow its use outside the four corners of the proceedings. Ward J recognised that this position was not 'sensible', and commented:

'It would be extraordinary if at a child protection conference the police had to be asked to leave the room while the conference reviewed the arrangements for the protection of the child, examined the current level of risk and considered whether the inter agency co-ordination was functioning effectively - which is the good practice of a child protection review according to para 6.90 of Working Together.'

50. In the leading case on the subject, Re G (Social Worker: Disclosure) [1996] 1 WLR 1407, [1996] 1 FLR 276, a circuit judge refused permission for a local authority to disclose to the police information which the local authority might obtain from the parents of the child who was the subject of ongoing care proceedings and which related to the parents' older child who had previously been taken into care suffering from serious injuries thought to be non-accidental. This court set aside the judge's order, holding that such information did not come within the terms of r 4.23 of the FPR 1991.
51. In Re G (Social Worker: Disclosure) the argument in this court centred on the meaning of the word 'document' in that rule. However, giving the leading judgment, Butler-Sloss LJ (as she then was) expressly left open the point which arises in this appeal. She distinguished between the roles of the guardian in care proceedings and the social worker charged with duties of child protection, and at 1414 and 282C respectively she said:

'It may be that disclosure of all documents emanating from or information given to the guardian would be subject to the leave of the court. I would not wish to express a view, in the absence of argument, as to the scope of the guardian's duty to the court and whether it excludes the duty to inform the police of admissions of criminal offences, without obtaining leave of the civil court.

A social worker's duties towards children in his area are far wider and are by no means confined to court proceedings.'

52. As I understand Re G (Social Worker: Disclosure) effect is that a social worker who receives confidential information from a children's guardian in care proceedings does not require the permission of the court before either acting on that information or relaying it to any other statutory agency, such as the police, engaged in the process of child protection. It does not address the issue raised in this appeal. Moreover, Re G (Social Worker: Disclosure) like Oxfordshire County Council v P and Cleveland County Council v F [1995] 1 WLR 785, [1995] 1 FLR 797, the issue of disclosure arose in care proceedings, to which the local authority was a party, and each was decided before the creation of CAFCASS. It is therefore clear that the question identified at paras [46] and [47] above is one not directly covered by any authority binding on this court.
53. Having now heard the point fully and skilfully argued, I am in no doubt, like Thorpe LJ, that in 2002, after more than 10 years of inter-disciplinary working under the 1989 Act, it would be extraordinary if the court were required to hold that CFRs who had been asked by the court to advise it about the best outcome for a child in private law proceedings under Part II of the 1989 Act were either in contempt of court, or potentially guilty of a criminal offence for disclosing information about the child to fellow professionals specifically charged under s 47 of the same Act with the duty, in specified circumstances, to make inquiries designed to enable them to take action, if necessary, to protect the same child.
54. The point is underlined, in my judgment, by the fact that both CFRs and child protection social workers are bound by principles of confidentiality. The social worker, who, as Butler-Sloss LJ pointed out in Re G (Social Worker: Disclosure), has much wider duties and responsibilities than the CFR, is not inhibited from sharing information about the child with fellow professionals in the multi-disciplinary framework of the child protection case conference and the s 47 investigation. But the social worker is just as bound by s 12 of the AJA 1960 in relation to wider publication outside the ambit of that investigation.
55. Furthermore, of course, the duty to investigate by the local authority only arises under Part V of the 1989 Act if the criteria laid down by s 47 are satisfied. Subsections (1) and (2) of that section set out the local authority's duties:

'(1) Where a local authority—

(a) are informed that a child who lives, or is found, in their area—

(i) is the subject of an emergency protection order; or

(ii) is in police protection; or

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such inquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.

(2) Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such inquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child's welfare.

(3) The inquiries shall, in particular, be directed towards establishing—

(a) whether the authority should make any application to the court, or exercise any of their other powers under this Act, with respect to the child; …'

56. The dilemma which faced the CFR in the instant case was the conflict between a document entitled 'Hampshire Family Court Welfare Child Protection Procedures' and the judicial view that those procedures, insofar as they related to sharing information with a child protection social worker, could not be implemented without the court's permission. Under the heading 'Sharing Information' the document states:

'Keeping children safe from harm requires professionals to share and exchange relevant information between them. Ethical and statutory codes concerned with confidentiality and data protection are not intended to prevent the exchange of information between different professional staff and agencies who have a responsibility for ensuring the protection of children.

The law permits the disclosure of confidential information necessary to safeguard a child or children in the public interest: that is, the public interest in child protections may override the public interest in maintaining confidentiality.'

57. I find that an accurate and wholly unexceptionable statement of the law. Under the heading 'Disclosure of Information about Sex Offenders' the document refers to guidance on the exchange of information about sex offenders and continues:

'The guidance emphasises that the disclosure should always take place within an established system and protocol between agencies, and should be integrated into a risk assessment and management system. Each case should be judged on its merits by the police and other relevant agencies, taking account of the degree of risk. The guidance places on the police the responsibility to co-ordinate and lead the risk assessment and management process.

Referral Procedures

Where it is suspected that a child may be suffering or may be at risk of suffering significant harm a referral must be made to the social services department.

All allegations or suspicions of sexual abuse must be reported immediately to the social services department.

Physical injuries that are unexplained or partially explained must be reported immediately to the social services department.

Where other child concerns build over time eg neglect, emotional abuse the case should be discussed with the FCW Manager.

Unresolved concerns should be notified to the social services department.'

58. The judge was highly critical of this document on two principal grounds. The first was that the referral procedures appeared to give the CFR no discretion. The second was that mandatory referral was triggered by bare allegations or suspicions. He plainly saw the need for judicial oversight as a means of preventing the system being abused by unscrupulous parents triggering a s 47 investigation by making false allegations to the CFR (or directly to the local authority) thereby frustrating timely resolution of the private law proceedings.
59. In my judgment, what the judge was doing at this point was to confuse the duty to convey information with the consequences for the parties and the case of that information being conveyed. This is an important point, to which I shall return.
60. In my judgment, the advice contained in the 'Hampshire Family Court Welfare Child Protection Procedures' cannot be criticised. It needs to be read in conjunction with ch 5 of Working Together to Safeguard Children and in particular paras 5.28 and 5.29 of that document. For the purposes of the argument relating to the propriety of the CFR providing information to a child protection social worker, what needs, I think, to be remembered is that in this context both are working to the criteria contained in s 47 of the 1989 Act in relation to the same child. The proposition that, in these circumstances, the CFR cannot communicate information to the social worker without judicial permission is, to my mind unsustainable.
61. In taking this view, however, I would not wish to be thought in any way to be seeking to water down or diminish the need for confidentiality in proceedings relating to children. Mr Everall's argument is historically well rooted and honourably designed to afford the maximum protection for children against unwarranted or unauthorised disclosure of information. The only question is whether the prohibitions which he submits are universal do in fact apply to inter-disciplinary communication between CFRs and child protection social workers. In my judgment, for that to be the case, the statutory language would have to be clear and unambiguous, and the court would need to be driven to the conclusion that no alternative construction of it was permissible.
62. It is here, it seems to me, that Mr Everall encounters the first of his two principal, and in my judgment ultimately insuperable, difficulties. Whilst seeking to support the rule that there should be no disclosure outside the confidentiality of the proceedings without the court's permission, he immediately acknowledged the necessity for at least one major exception to the rule. This concerned the type of information canvassed in argument where a CFR, on a weekend or evening visit to a parent and child discovers the child suffering from clear signs of serious non-accidental injury which the parent in temporary charge of the child refuses either to acknowledge or to agree to have treated. In such circumstances it would be absurd, as Mr Everall readily recognised, were the rule to be that, before the emergency services could be summoned, or the local authority duty worker telephoned, the CFR had to speak to the judge to obtain permission for information about the child to be passed on to the emergency services and relevant child protection agencies.
63. Such a sensible concession provokes an equally obvious question. If the rule of confidentiality for which Mr Everall contends admits of so immediate and so necessary an exception, what is the rationale for the rule in the first place, insofar as it relates to professionals in closely related fields, who both have child protection responsibilities, who are both bound by rules of confidentiality, and who need to exchange information about a child?
64. Mr Everall took us carefully through the statutes and the rules in support of his argument that the information gathered by CFRs pursuant to their powers and duties is caught by s 12 of the AJA 1960 as being 'information relating to proceedings'. He then submitted that the words 'information relating to the proceedings' had a broad meaning and referred us to the judgment of Geoffrey Lane LJ in Re F (Orse A) (A Minor) (Publication of Information) [1977] Fam 58, at 105D-F relating to the meaning of proceedings, which includes 'such matters as statements of evidence, reports, accounts of interviews and such like'.
65. Against this background, Mr Everall submitted that 'publication' had to be a term of art akin to publication in libel, that is to say a communication to any third party. In support of this proposition he referred to Practice Direction (Minor: Welfare Report) (8 February 1982) [1982] 1 WLR 234, which warned recipients of what were then court welfare officers' reports that in addition to it being a contempt of court to show or reveal the contents of the report to any person not a party to the proceedings, publication of its contents might render them liable for damages for libel or slander.^[1]
66. In my judgment the second, and fatal weakness in Mr Everall's argument lay in its reliance on a wide construction of the word 'publication'. Mr Everall acknowledged that in the instant case, the mother could have communicated the identical information to social services without seeking the judge's permission. She would not, he accepted, have been in breach of either s 12 of the AJA 1960 or s 97 of the 1989 Act. But the concession prompts the inevitable question: why would the CFR be in contempt and the parent not? Why might the CFR have committed a criminal offence and the parent not? It is, of course, no answer that the information provided by the parent is not related to the proceedings, and Mr Everall did not attempt so to argue. The only logical answer to this question, therefore, in my judgment, is that neither is 'publishing' the information. Each is communicating information to a statutory body charged with responsibility for child protection. That is neither a criminal offence nor a contempt of court.
67. Like Thorpe LJ, accordingly, I would accept Mr Spon-Smith's primary submission. The word 'publication' should be given its everyday meaning. Responsible inter-disciplinary communication in proceedings relating to children is not 'publication' of that information within either the AJA 1960 or the 1989 Act.
68. As I indicated at para [61] above, I do not see our decision on this point as weakening the true basis of confidentiality or undermining the court's resistance to publication of information in the sense in which it is likely to be harmful to children. Children need to be protected from publicity in the usually understood meaning of that term, where public knowledge of their plight or the activities of their parents in relation to them would be harmful. In my judgment, therefore, giving the word 'publication' its ordinary meaning is consistent with the framework of the 1989 Act and does nothing to obstruct the court's ability to protect children from harm.

Wider issues

69. A decision on the fundamental question is, strictly speaking, sufficient to dispose of this appeal. In my judgment, however, answering the question in this way gives rise to three wider issues, all of which are encompassed within this appeal, and two of which plainly troubled His Honour Judge Rudd.
70. The first issue relates to CAFCASS itself. What is it? And what is the status of its officers in proceedings under the 1989 Act? Secondly, what rules of practice should govern the relationship between the court and the CFR in private law cases and in particular where, as here, the CFR receives information which needs to be passed on the statutory child protection agencies? Thirdly, what should happen in cases in which the local authority, often jointly with the police, embarks on an investigation under s 47 of the 1989 Act when there are already in existence private law proceedings relating to the same child, or when private law proceedings are issued during the course of a s 47 investigation? I propose to address each of these issues in turn.

The functions and status of CAFCASS

71. Historically, CAFCASS is the amalgamation of the court welfare service, the guardian ad litem service and the branch of the Official Solicitor's Department which dealt with children. It is, however, much more than that, as its title makes clear. It is also, of course, a creature of statute, created by the CJCSA 2000.
72. In order properly to understand the status and functions of CAFCASS it is, I think, necessary to look at the statutory provisions which bring it into being and define its functions in some detail.
73. CAFCASS is a body corporate, which is to exercise the functions conferred on it by CJCSA 2000 and any other enactment. Its principal functions, defined by s 12 are:

'(1) 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,

(c) make provision for the children to be represented in such proceedings,

(d) provide information, advice and other support for the children and their families.

(2) The Service must also make provision for the performance of any functions conferred on officers of the Service by virtue of this Act or any other enactment (whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1)).'

74. By s 12(3) a regulatory power is given to the Lord Chancellor to provide for grants to be paid by CAFCASS to any person for the purpose of furthering the performance of any of the Service's functions. By s 12(5) 'family proceedings' has the same meaning as in the Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the 1989 Act, but:

(a) references to family proceedings include (where the context allows) family proceedings which are proposed or have been concluded; and

(b) for the purposes of para (a), where a supervision order (within the meaning of the 1989 Act) is made in family proceedings, the proceedings are not to be treated as concluded until the order has ceased to have effect.

75. At the date this judgment is handed down, the Government has inserted as cl 114 to Sch 4 to the Adoption and Children Bill an amendment to s 12(5) of CJCSA 2000 which, if enacted, will have the effect of repealing s 12(5)(b).
76. Under s 13 of CJCSA 2000, CAFCASS is empowered to make arrangements with organisations under which those organisations and individuals designated by them may perform functions of CAFCASS on its behalf, provided CAFCASS is of the opinion that the functions in question will be performed efficiently and to the required standard, and that the arrangement represents good value for money. By s 13(5), CAFCASS is given the power to commission, or assist the conduct of, research by any person into matters concerned with the exercise of its functions.
77. By s 15 of CJCSA 2000, CAFCASS is given the power to authorise an officer of CAFCASS of a prescribed description to conduct litigation in relation to any proceedings in any court, and to exercise a right of audience in any proceedings before any court in the exercise of the officer's functions. Any CAFCASS officer exercising that right is to be treated as having acquired it by virtue of CAFCASS's power to authorise it.
78. By s 16 of CJCSA 2000, and in a significant departure from previous practice (see Cadman v Cadman (1982) 3 FLR 275 at 277 referred to at para [24] of Thorpe LJ's judgment) CFRs may be cross-examined in any proceedings to the same extent as any witness, although they may not be cross-examined merely because they are exercising a right to conduct litigation or a right of audience granted in accordance with s 15. This change derives from the incorporation into English law of Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
79. Schedule 2 to the Act deals with the constitution of CAFCASS, and it is not necessary in this judgment to do anything other than provide an outline. CAFCASS is to have a chair and not less than ten other members, appointed by the Lord Chancellor. It has a chief executive who cannot be appointed without the Lord Chancellor's approval. Remuneration and procedure are dealt with by regulations made by the Lord Chancellor. Powers are provided for the establishment and functions of committees, which can include persons who are not members of CAFCASS. Non-members may also be co-opted onto the board for particular purposes. By cl 12(1) CAFCASS must make a report to the Lord Chancellor in respect of each financial year on the performance of its functions, which the Lord Chancellor must lay before each house of Parliament, and make arrangements for the report to be published in a manner he considers appropriate. By cl 15 CAFCASS must make and publicise a scheme for dealing with complaints
80. I have set out the provisions of CJCSA 2000 in such detail because, in my judgment, it is important to recognise that CAFCASS is a new body with a multiplicity of functions. It has been given a pivotal role to play in the family justice system, and it needs to establish its identity and its status as swiftly and authoritatively as possible. Its structure and the functions which it has been given by Parliament clearly provide the opportunity, for the first time in the family justice system, to create a coherent and integrated service for families and children involved in relationship breakdown.
81. We are in this case, of course, only concerned with one aspect of CAFCASS's functions, albeit one of considerable importance. We need to remember, however, that the flexible structure of CAFCASS enables the person appointed as CFR in a private law case to be appointed the children's guardian in a public law case.
82. CAFCASS is going to have to identify and define the principles and national standards under which it will carry out its functions under the 1989 Act and FPR 1991. It also follows from this very substantial change that the relationship between CAFCASS and the judiciary - and in particular the status and functions of CFRs - is an issue which needs to be addressed. It is, accordingly, to this topic which I now turn.

The relationship between the court and the CFR

83. Whilst we must, of course, learn from and build upon past experience, we cannot, in my judgment import previous concepts into CAFCASS unless they fit comfortably with the new service and are in the interests of the children involved in the proceedings. Thus, in my judgment, the phrase 'officer of the court', whilst mellifluous and reassuringly resonant, is no longer apt to describe the functions of the CFR. They are officers of the service (CAFCASS), with professional duties and responsibilities defined by CJCSA 2000 and FPR 1991 as amended.
84. This is particularly important, in my judgment, when it comes to considering the relationship between the CFR and the judiciary. Under s 7 of the 1989 Act the judge 'asks' an officer of CAFCASS to report to the court. No doubt the request is contained in an order of the court, and the CFR has a duty under s 12(1)(b) of CJCSA 2000 and FPR 1991, r 4.11 to investigate, to advise and to 'provide the court with such other assistance as it may require'. Other powers and duties are set out in FPR 1991, r 4.11B. But in my judgment, the language used is significant. The court 'asks'. The CFR investigates, advises and assists. The language is to be contrasted with s 37 of the 1989 Act, where the court directs.
85. The relationship between the judiciary and the CFR should be, accordingly, one of collaboration and mutual co-operation. It is no more for the judge to tell CFRs how to go about their inquiries than it is for the CFR to intrude on the judicial function by making findings of fact.
86. In my judgment, the relationship between the CFR and the judge requires the latter to identify the issues in the case on which he or she seeks the assistance of the CFR, and to ask the CFR to report on them. The brief is contained in the court order, which should identify those issues. The CFR has professional duties and responsibilities which the judge must respect. Thus, as is illustrated by this case, if CFRs feel professionally obliged to communicate information about the child to local authority duty social workers, they must not be inhibited from doing so by the feeling that they are, in some way, under the court's control as an 'officer of the court'.
87. That is not, of course, to say that there should not be ongoing communication between the CFR and the court. To the contrary, important child protection information of the type envisaged in the previous paragraph should be immediately communicated to the judge. Equally, the relationship between the CFR and the judge should be such that CFRs should not feel it any derogation from their professional status to go back to the judge to ask for advice on unforeseen developments in the course of their inquiries.
88. In the course of his argument, Mr Spon-Smith, on behalf of CAFCASS submitted: (1) that CFRs are entitled to seek directions from the court in cases where they are in doubt as to the appropriate course of action, and should be encouraged to do so; and (2) that a CFR may in the first instance apply to the court without notice to the other parties if the CFR considers that premature disclosure of allegations might prejudice an investigation or cause a risk to the child's safety. He added that in any event, the court and (unless directed by the court) all parties to the proceedings should be informed as soon as possible of any action taken by the CFR.
89. Speaking for myself, I have no difficulty with limb (1) of Mr Spon-Smith's argument set out above. I am, however, troubled by limb (2), on which we did not hear full argument. In particular, we did not look at the cases in this court such as H v H (Irregularity: Effect on Order) (1983) 4 FLR 119 and Re B (A Minor) (Irregularity of Practice) [1990] 1 FLR 300 which deal with private communications between the court and what was then the court welfare officer, and in my judgment any analysis of the circumstances in which a CFR can make a without-notice application to the judge, or communicate privately with the judge must await a case in which those issues specifically arise for decision.
90. For present purposes it is clear to me as a matter of general principle that if, in the course of their inquiries, CFRs find themselves needing to communicate with the judge or to seek the court's directions: (a) the information they communicate to the judge must also be communicated to the other parties; and (b) any application to the judge for directions must be made on notice to the other parties.
91. It will, in my judgment, be only in highly exceptional circumstances that an application such as that envisaged by Mr Spon-Smith's proposition (2)may be appropriate, and in my judgment CAFCASS as a body would be wise to devise procedures to enable CFRs who find themselves in that position both to seek immediate advice from higher management and prompt legal advice from CAFCASS Legal.
92. In the same way that CFRs should be encouraged, where necessary, to seek guidance from the judge about the way sensitive information acquired by the CFR is used in the proceedings, the judiciary should not see it in any way as an affront to its dignity if the CFRs' professional code requires them (as in the instant case) to take a particular course of action which the CFR deems professionally necessary but with which the judge does not agree.
93. In this context, I have to say that I deprecate the somewhat colourful language and dismissive tone in which the judge in the instant case dealt with the 'Code of Conduct and Standard Procedures' worked out for CFRs by their professional organisation. Judges do not have a monopoly of wisdom on the manner in which other professional organisations regard it as appropriate to perform their functions, and judges in my view should be aware of the limitations of the judicial function.
94. On the other side of the equation, of course, CFRs need to be acutely aware of the risk that a parent may be behaving manipulatively by making allegations of child abuse against the other parent. Allegations of sexual abuse in particular are very easy to make, and very difficult to refute. In the instant case, the child is living with her father and the allegations (if untrue) are likely to have an ulterior, tactical purpose. In the instant case, an exchange of information between the CFR and the local authority would have revealed a previous complaint by the mother which had been investigated and found to be baseless. In these circumstances, the CFR and the social worker might well have concluded that the information given to the former was a matter she should report to the judge so that the judge could decide how it should be addressed in the private law proceedings.
95. Like Thorpe LJ, I disagree with the final 13 words of para 4.19 of the old National Standards for Probation Service Family Court Welfare Work, which he has set out at para [39] of his judgment. These seem to me to impinge inappropriately on the judicial function. If CFRs feel professionally obliged to relay child protection information to a local authority, they should immediately inform the judge and seek the judge's directions as to the future of their inquiries. The decision to suspend or terminate inquiries is for the judge who has the conduct of the private law proceedings. This point has a particular relevance to the question of the interface between private law proceedings and an inquiry by the local authority under s 47, to which I will turn in a moment.
96. In summary, therefore, my conclusions on this important part of the case are:

(i) CFRs are not 'officers of the court'. They are officers of the Service (CAFCASS) with the duties and responsibilities laid upon them by s 12 of CJCSA 2000, s 7 of the 1989 Act and r 4.11 of the FPR 1991.

(ii) CFRs are not under the control of the judiciary. Within the scope of their employment by CAFCASS, they are independent professionals who, at the request of the court, investigate issues identified by the court as relating to the welfare of the child in question and give the court any advice and assistance it requires.During the course of those investigations, they are free to exercise their professional judgment on those issues, and in particular do not need the court's permission to disclose information to local authority child protection workers.

(iii) The relationship between CFRs and the judiciary should be collaborative and co-operative. In particular, CFRs should not hesitate to seek directions from the judge in relation to issues which arise during the course of the investigation.

(iv) CFRs should advise the court immediately if a child protection issue of sufficient gravity arises such as has required the CFR to notify the local authority. The CFR in such circumstances should seek the court's directions and any decision to terminate or continue the CFR's inquiries is for the court, not the CFR.

The inter-relationship between private law family proceedings and a local authority/police investigation under s 47 of the 1989 Act

97. One of the major objections to unrestricted exchanges of information between professionals in the family justice system is not, in my experience, philosophical, but practical. It is not so much the passing of the information but the consequences of passing the information to which objection is taken.
98. His Honour Judge Rudd gives a colourful example in the judgment under appeal. There are private law proceedings between parents, which, as so often, relate to contact. An allegation is made by the residential parent that the non-residential parent has been guilty of sexual impropriety against the child during contact. The allegation is reported to the local authority and/or the police by the residential parent. The local authority and the police begin a joint inquiry. The CAFCASS investigation is suspended. Then, after a period of months, the police do not prosecute, the local authority does not take care proceedings, and the private law proceedings resume. By this time, contact between the child and the accused parent has been suspended for a long period. The attitudes of the parents have polarised further. The residential parent is still convinced that abuse has occurred notwithstanding the negative outcome of the s 47 investigation. All in all, the facilitation of contact is rendered even more difficult than it was before.
99. Judicial attempts to address this problem have not, to date, been successful. A notable example is D v D (County Court Jurisdiction: Injunctions) [1993] 2 FLR 802, in which a circuit judge, outraged at the conduct of a local authority, sought by injunction to restrain it from pursuing what he regarded as a wholly inappropriate s 47 inquiry. On appeal, this court held firmly that there was no jurisdiction in the court to restrain a local authority from carrying out its statutory functions. That is plainly correct.
100. Mr Everall, in the course of his researches, referred us a decision of mine at first instance, Re A and B (Minors) (No 2) [1995] 1 FLR 351, which is a particularly stark example of the delay and difficulty brought about by concurrent but uncoordinated private law family proceedings relating to contact and a police/local authority investigation under s 47. Re A and B (Minors) (No 2) makes the basic point that in such circumstances there needs to be coordination between the two, and that the proper coordinating agency should be the court dealing with the private law proceedings.
101. The emergence of CAFCASS and the issues raised by this appeal provide, I think, a useful opportunity to revisit and expand upon Re A and B (Minors) (No 2). In that case, at 354E-F, I suggested that if the court was to be the coordinating agency, it was vital that proper procedures were in place to ensure that the case was heard expeditiously. I suggested that this should be achieved by:

'Tightly drawn orders for directions, by the effective use of s 7 of the Children Act (addressed to the local authority) and by efficient use of the flexibility of the court structure to ensure both the appropriate level at which and the earliest possible hearing date on which it is to be tried.'

At 372-373 I set out a number of procedural conclusions designed to facilitate the process of coordination and ensure that the private law proceedings were heard as soon as possible. I do not resile from any of those conclusions, and do not need to repeat them here.

102. Where there are concurrent private law proceedings and a s 47 investigation, however, the first and most important step must be to ensure that each limb of the investigation knows of the other's existence. Where a CFR makes a referral to the local authority, no such problem arises. Equally, where s 8 proceedings are instituted after the commencement of a s 47 investigation, the court should be made aware of the referral by reference to it in the notice of application or the evidence filed by the parties. However, where a parent makes a s 47 referral during the course of private law proceedings, he or she may not inform the local authority of the existence of the proceedings; alternatively, the local authority may take the view (wrongly) that the s 8 proceedings are irrelevant to its inquiry.
103. In my judgment, practical measures need to be put in place at local level to ensure that when a referral is made to social services by a parent or a third party, the local authority in question is either made aware, or makes it its business to find out whether or not there are concurrent, ongoing private law family proceedings. It is only when this has been done that relevant information can be shared and the two different investigations properly coordinated.
104. In practical terms, this can and should mean that in appropriate circumstances the local authority can exercise its statutory s 47 1989 Act function by leaving to the court in the private law proceedings the investigation of the allegation which has been reported to the local authority. In other circumstances, the local authority will be obliged to perform its s 47 functions jointly with the police by conducting memorandum interviews and medical examinations. In such circumstances, the court should be aware of what is being done, and should be kept fully informed. As Thorpe LJ points out, the obvious medium of communication between the court and the local authority in these circumstances is the CFR.
105. I would therefore venture the following suggestions for CAFCASS and local authorities in cases where there are concurrent private law proceedings and s 47 investigations, or where one comes into existence during the lifetime of the other:

(i) In all cases in which a local authority is invited to take action to protect a child under s 47 of the 1989 Act, that authority should have in place a mechanism for finding out if the child is the subject of existing private law proceedings. Both CAFCASS and

the courts should be in a position to respond to an inquiry from a local authority about a particular child.

(ii) When imparting information to the local authority for the purposes of a prospective s 47 investigation, the CFR will, of course, inform the local authority of the existence of the private law proceedings, and the stage they have reached. If, as a consequence, the local authority wishes to have access to documents on the court file, it will need the permission of the court under FPR 1991, r 4.23.

(iii) Immediately after making the reference to the local authority, the CFR must inform the judge who commissioned the report about what he or she has done. The CFR should seek the court's directions about the next step. The advice to the judge will depend on the facts of the case and the seriousness of the allegations. In some cases the CFR may advise the judge to seek a report from the local authority under s 7: in other more serious cases a report under s 37 may be suitable. In others the CFR may suggest convening an urgent directions appointment. What is important is that from the earliest point, the judge should be fully seized with what is happening.

(iv) Whilst the judge cannot dictate to the local authority how the s 47 investigation is conducted, there will undoubtedly be cases where it will be proper for the local authority to agree that any investigation into disputed allegations of abuse should be conducted by the judge. Where this is a practical option, directions to achieve a speedy hearing should be given by the judge.

(v) Where a s 47 investigation has begun, judges should not hesitate to use their powers under s 7 of the 1989 Act to require the local authority to inform the court as to the state and scope of the s 47 investigation: how long it is likely to last; what is involved; whether or not there will be police involvement and if so what progress is being made in that respect.

106. In my experience of cases where allegations of abuse are the subject of concurrent private law proceedings and a s 47 investigation, one of the most bitter complaints made by alleged perpetrators has been that during the s 47 investigation they were not informed of what was going on; that once they had been interviewed by the police, the local authority never came near them and did not keep them informed about what was happening. The objective, therefore, in my judgment, should always be to ensure that the issues in the case are rapidly identified, placed before the court and then resolved on appropriate evidence as soon as possible.

The instant case

107. In the instant case, it is clear that, if the allegations made by the mother are to be pursued, the proper place for that to happen is the s 8 proceedings. To that end, counsel before us were able to agree directions designed to effect as speedy a resolution of those proceedings as possible. Thus, although the judge was wrong to find that permission was required for the CFR to speak to the local authority, the result has been that the information has not been given to the local authority.
108. Mr Everall made a valiant effort to persuade us that His Honour Judge Rudd had not pre-judged the issue and that there was no reason why he should not proceed to hear the s 8 proceedings. Whilst it is true that the judge did, at one point, say that he was 'looking at the question solely in the background as to whether I should give leave or not', he not only came to the conclusion that the allegations did not amount to sexual abuse, but that, unlike the CFR, he could consider 'whether the allegations are likely to be true or not or more likely to be true than not'. The overwhelming impression given by the judgment is that the judge did not think the allegations were true. He may or may not be right. As I stated at para [45] of this judgment, his instinct about the underlying facts of the case may have been sound. But in my judgment he did not do what he should have done, namely: (1) identify the allegations; (2) satisfy himself that the child was not at risk of immediate harm; and (3) give directions as to the speedy hearing of the residence/contact dispute and the allegations, if pursued by the mother, as to the father's misbehaviour. The reason he did not do that was, no doubt, his conviction that the issue before him was permission for the CFR to disclose the information to the local authority. Unfortunately, in my judgment, that led him not only into an assessment of the gravity of the allegations but to the conclusion (or at the very lowest to the appearance of the conclusion) that they were unlikely to be true. Plainly, any conclusion that the allegations were likely to be untrue was one which he could only properly reach at the conclusion of a hearing in which both parties had given evidence.
109. For all these reasons, I, like Thorpe LJ, would allow this appeal.

Appeal allowed with costs; no order as to costs in respect of trial before His Honour Judge Rudd.

PATRICK GALLAGHER

Law Reporter

Note 1   Editor's note: this direction was subsequently superseded by Practice Direction (Minor: Welfare Officer's Report) (24 February 1984) [1984] 1 WLR 446, [1984] 1 All ER 827, which made no mention of libel or slander.    [Back]

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