In re M (A Child) (Children and Family Reporter: Disclosure)

A children and family reporter investigating private law proceedings may communicate child-protection concerns directly to the relevant local authority or police without first obtaining the court’s permission. Responsible communication between professionals charged with protecting the same child is not “publication” for the purposes of Administration of Justice Act 1960, section 12, or Children Act 1989, section 97.

The reporter remains an independent professional. The reporter must exercise an unfettered discretion, informed by the source, credibility, gravity and urgency of the concern. The relationship with the judge is collaborative. After making a referral, the reporter must inform the judge at the earliest convenient opportunity. The judge alone controls the proceedings and decides whether the reporter’s inquiry should continue, be suspended or be terminated.

A children and family reporter appointed under section 7 of the Children Act 1989 received allegations from a mother during private law residence proceedings. Following local practice, the reporter sought judicial permission before referring the allegations to social services. His Honour Judge Rudd held that permission was legally required and refused it on the facts.

CAFCASS assumed the reporter’s appeal. The mother also appealed. The central issues were whether statutory confidentiality or the reporter’s relationship with the court required prior permission; how child-protection information should be handled; and whether the judge had properly assessed the allegations.

1. Appeal allowed unanimously. Thorpe LJ delivered the leading judgment, with which Wall J agreed. The judge had erred in holding that a children and family reporter required permission before communicating child-protection concerns to social services.

2. Rule 4.23 of the Family Proceedings Rules 1991 protects documents held by the court. It does not extend to information obtained during a reporter’s investigation merely because that information may later appear in a report. Information supplied to the reporter could relate to proceedings for section 12 of the Administration of Justice Act 1960. Nevertheless, responsible communication between the reporter and a statutory child-protection professional is not “publication” under that section or section 97 of the Children Act 1989.

3. A reporter is an officer of CAFCASS and an independent professional, rather than an officer under the judiciary’s control. The reporter and judge have distinct but collaborative functions. The reporter independently determines the nature and conduct of investigations and may refer concerns without permission. The reporter must inform the judge at the earliest convenient opportunity after acting. Only the judge may suspend or terminate the court-directed inquiry.

4. The appropriate response depends on the circumstances. Relevant matters include whether the information is a direct discovery or a second-hand allegation; whether it has already been reported; the history and plausibility of complaints; whether the informant is a party who can put the allegation in evidence; whether significant harm is alleged; and the urgency and risks of delay. Second-hand allegations from a party will seldom require referral. Direct discoveries, disclosures by a child or dangers observed during a home visit may justify immediate referral.

5. Wall J added that communications or applications to the judge should ordinarily be disclosed to all parties and made on notice. Private or without-notice communication could be appropriate only in highly exceptional circumstances.

6. The refusal to refer the particular allegations was substantively justified because the mother could report them herself or place them in evidence for determination at trial. The judge had, however, created an appearance of prejudgment by assessing credibility before the allegations had been properly formulated and tested. The proceedings were therefore to continue before another judge under agreed directions.

• Court of Appeal: Allowed the appeal unanimously. It held that prior judicial permission was not legally required and directed that the private law proceedings continue before another judge.
• County Court: His Honour Judge Rudd held that a children and family reporter required leave to disclose information obtained during an investigation to social services. He refused leave but granted permission to appeal to the reporter and the mother.