This blog post is about a case which provides a useful discussion point around questions of privacy of information in family cases, and what can and can’t be disclosed about them. It illustrates how unclear things can be.

The case is S v SP and CAFCASS [2016] EWHC 3673 (Fam) (09 December 2016) and you can read the judgment here.

A little bit about the background

A CAFCASS Officer acting as Guardian for children in a long running private law case was contacted by the police in the context of an ongoing investigation into allegations made by the father about the mother. In that conversation she summarised the gist of the court case and what was happening, and her worries and concerns about the father, who suffers from mental health problems, and is a sex offender with a SOPO (Sexual Offences Prevention Order) and (then) a harassment order in place to protect the mother.

The father tried to have her committed to prison for breaching Family Court rules about what can and can’t be disclosed without the permission of the court, Family Procedure Rule 12.73 to be precise, In fact he also wanted CAFCASS to be punished for the actions of the CAFCASS Officer.

The father had already complained to CAFCASS and to the PHSO (Parliamentary and Health Service Ombudsman) about the CAFCASS Officer giving information to the police in this way. According to the judgment that complaint was upheld, although it is not one of the cases summarised on the PHSO website (they are only an illustrative selection and in any event don’t seem to go beyond late 2015). However that complaint was about a breach of data protection rules, rather than court rules.

The father said that he had been very distressed to find out CAFCASS had shared information about him with the police in this way to the point that it made him suicidal.

CAFCASS and the individual Officer “SP” were represented at the committal hearing. The father did not turn up, having decided not to come because of difficulties with travel costs arising from an adjournment. The court carried on in his absence but did fully review the evidence that was filed by all parties.

So what did the CAFCASS Officer say then?

The CAFCASS Officer’s record of what she had told the police was this :

I informed them that there have been long private law proceedings which have not found any resolution in a direct order for contact at this stage between S and the children. I said that one child knew about the father’s history. He Googled it after his father left the family home. The other child has no idea of the father’s offending history and is only eight years old so has been completely protected by Mrs S. I said that we are currently concerned about S’s emotional health and the impact this would have on the children.

“I said that we are looking at having an expert to assess the family but father has said that he will not engage in the process. I said that at the next hearing the judge will look at what happens next (1) whether he have an expert purely looking at the family papers to address any of the risk factors to progressing contact; (2) to have an order to stop S from making further application to the court which has a detrimental impact on the children’s emotional wellbeing. I said that I had been concerned about S’s emotional health and I had to balance this against the protection and welfare of the children. I said that I had made a referral to adult social care because of my concerns about a letter he wrote to the children that I have not passed on to them. There were indications that he may have thought about taking his own life. I was concerned for him.

“I said that mother has a restraining order preventing him from contacting her and the children. The police knew that he had breached the orders previously. I said that he had and it was before my involvement but when it was with another practitioner in the previous proceedings. I said that I had been concerned that S is finding it difficult to be child-focused. The children still wish to have contact with their father and have been protected as much as we can from his complaints that he currently has about the courts and the judiciary and his ex-wife.

“The police asked about how and why contact has not progressed. I said that the welfare issues needed addressing before we can be satisfied that contact will be safe both emotionally and physically for the children and how that would be managed. I said that S’s SOPO [sexual offences prevention order] has prevented contact from moving to a contact centre previously because of the constraints around his order.

“The police asked if S was open to any mental health services and I said that I thought he was not but that he had in the past due to issues of suicidal ideation. The police said they would update me when they had made a decision about his allegations.

So, the question the court had to decide was whether giving the police the above information was a breach of FPR 12.73 or not. If it was it was potentially a contempt of court, which can carry a sentence of imprisonment. The question wasn’t whether or not there had been any data protection breach (which the PHSO apparently thought there was) or whether there had been any other breach of confidentiality. Just : had she broken court rules? The Family Court has no powers to punish for data protection breaches or breach of confidentiality etc, but if “information relating to the proceedings” is “published” in a way that does not fall within the Family Procedure Rules (FPR) or which has not been specifically ok’d by the court, Section 12 Administration of Justice Act 1960 (AJA) says this is a contempt of court.

The Judge could have gone through the vast amount of law in this area in great detail. He didn’t. The issues were :

• was the information “information relating to the proceedings“?
• had it been “published”?
• was it information that the officer was allowed to disclose under the FPR?

The judge said YES to the first question and YES to the third question, so didn’t really need to go on to consider the second question about “publication”. So the CAFCASS Officer hadn’t done anything wrong and couldn’t be committed to prison for contempt of court because she wasn’t in contempt of court.

Hang on, the CAFCASS Officer didn’t “publish” anything – did she?

You might have wondered why the judge didn’t just take the easy option of saying there was no publication, so no contempt. But previous caselaw tells us however that the definition of “publication” is pretty wide in this context. See, for example, Re B (A Child) v the Mother & Ors [2004] EWHC 411 (Fam) [2004] 2 FLR 142, where Munby J (now the President of the Family Division) said this :

I need to emphasise that there is a “publication” for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official.

So yes, she did “publish” information.

Was the information “information relating to the proceedings”?

You know the answer was YES (because we told you above), but why? It’s worth exploring a little because this is not actually that obvious either. When I first read what the CAFCASS Officer was disclosed, running through my head was “I’m not sure much of this is “information relating to the proceedings”. And I’m not the only one to have had that initial reaction. At one point it appears CAFCASS had effectively acknowledged that the officer had disclosed information without obtaining the necessary permission, because they applied for that permission retrospectively. But their position at the point of this hearing (no doubt when more considered legal advice had been obtained) was different. They said that there hadn’t been a disclosure of “information relating to the proceedings”. However, the judge disagreed. Unfortunately he doesn’t give details why, and it doesn’t actually make any difference to the outcome because the CAFCASS Officer got off on the answer to the third question – the rules allowed it anyway.

The Re B Case (which wasn’t mentioned in the judgment but which is usually the “go to” judgment when trying to work out whether something is a breach of s12) says this about what amounts to “information relating to the proceedings” :

…Section 12 prohibits the publication of:

a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.

These prohibitions apply whether or not the information or the document being published has been anonymised.vii) (By way of example of how the principles in (v) and (vi) inter-relate) in a case such as the present case section 12 does not of itself prohibit the publication of:

a) the issues in the case as being whether the mother suffered from Munchausen’s Syndrome by Proxy and whether she had killed (or attempted to kill) her child(ren) by, for instance, smothering or poisoning;

b) the identity of the various medical experts who have given evidence in relation to those issues; and

c) which of the parties each expert has given evidence for or against.

From this it is easy to see why those representing CAFCASS thought it was arguable that there hadn’t been any disclosure of “information relating to the proceedings” at all.

So what does FPR 12.73 say, and why wasn’t the CAFCASS Officer in breach of it?

FPR 12.73 is the bit of the FPR which sets limits on the effect of s12 AJA. It gives a list of circumstances when it is OK to disclose information without a specific court order. There are some general circumstances set out in the rule itself, and the rule also says that the scenarios set out in Practice Direction 12G are ok too. The one that applied here was where the disclosure is to “(viii) a professional acting in furtherance of the protection of children;“

Because the investigation that the Police officer was investigating was the fathers allegations of abuse against the mother, and the disclosure was connected to that enquiry it fell within this rule and was permitted.

1. 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.

The judge remarks that the purpose of this rule is to ensure that agencies work together in furtherance of child protection and as such the rule must must not be too restrictively interpreted, and indeed the rule itself is broadly drafted – for example “furtherance of child protection” covers much more than “in connection with an investigation into an allegation of child abuse” would.

The lesson

The moral of the story for both parents and professionals has to be : if you aren’t sure about who you can disclose information to, check the rules and take advice.

Feature Pic courtesy of Mark Strozier on Flickr (Creative Commons) – thanks!