D v Buckinghamshire County Council

Family proceedings remain active until the court grants leave to withdraw, and the court may make findings of fact without a live issue where they may protect children in future. Disclosure from family proceedings is permissible on material held on an honest belief on reasonable grounds, but requires real and cogent evidence of a pressing need. The assessment must address the proposed recipient, the welfare of other children, confidentiality, fairness and the subject’s Article 8 rights. Disclosure to the statutory safeguarding authority was justified because the findings indicated a future risk. Disclosure to other bodies lacked pressing need and was confined accordingly.

A local authority became involved after D, a former teacher, brought a 16-year-old former pupil from India to the United Kingdom. It commenced care proceedings under Part IV of the Children Act 1989 and sought an injunction restricting contact. D left the United Kingdom and did not pursue his proposed private-law applications. The child returned to India, but the county court made findings concerning D’s history and authorised disclosure to various bodies. Following a rehearing, the judgment of 10 January 2007 maintained disclosure in principle, with later orders reducing the proposed recipients. The appeal concerned the jurisdiction to make findings after the proceedings had effectively ended and the proper scope of disclosure, particularly whether disclosure should extend beyond the statutory safeguarding authorities.

1. Disposition. The appeal was allowed in part. The essence of the county court’s judgment was upheld, but the matter was remitted to settle the disclosure schedule and to authorise disclosure only to the Department for Children, Schools and Families. Disclosure to the Home Office and the High Commission of India was excluded. The information disclosed to other recipients was to be recalled and deleted.
2. Fact-finding. Rule 4.5(1) of FPR [1991] means that parties cannot discontinue family proceedings at will. Proceedings remain active until the court grants leave to withdraw. The court may therefore make findings of fact even where no live issue remains, particularly where the findings may become relevant to a future application or to the protection of another child. The judge was entitled to assess the historical material cumulatively, including material which supported findings of the local authority’s honest belief on reasonable grounds. The decision to make findings had to be distinguished from the later decision whether to disseminate them.
3. Disclosure principles. Hedley J accepted the exposition in Re C (Disclosure: Sexual Abuse Findings) [2002] 2 FLR 375, drawing on Re EC (Disclosure of Material) [1996] 2 FLR 725. Disclosure requires real and cogent evidence of a pressing need. The relevant assessment includes the welfare of other children, confidentiality, frankness, fairness, the interests and likely impact on the subject and family, the risk of driving the subject underground, control of sensitive information and the overall circumstances. Material held on an honest belief on reasonable grounds may fall within the potential scope of disclosure, as recognised in R v Devon County Council ex p L [1991] 2 FLR 541 and R v Local Authority & Police Authority in the Midlands ex p LM [2000] 1 FLR 612.
4. Rights and recipient. Article 8 rights are qualified. In the balance between protecting children and fairness to an adult, the adult’s interests may have to yield to the child’s needs, consistently with the principle in R v Harrow London Borough Council ex p AD [1990] 1FLR 79. Whether pressing need exists cannot be decided without identifying the proposed recipient. Disclosure to the Secretary of State was justified because the findings indicated a reasonable prospect of future involvement with children and were relevant to the statutory safeguarding lists. Disclosure did not result in automatic listing; it supplied material for discretionary consideration, with representations and statutory review available.
5. Scope and procedure. The statutory framework was extensive and accessible to professional safeguarding bodies. There was no pressing need for disclosure to the Home Office or the High Commission of India. Disclosure outside the statutory framework would ordinarily be exceptional, save for related criminal proceedings. Thorpe LJ additionally characterised the original 2005 order as a fundamental breach of natural justice because D had not been given notice of the proposed widespread disclosure. Keene LJ agreed, and Thorpe LJ stated that he was in full agreement with Hedley J’s judgment.

1. Court of Appeal (Civil Division). On appeal under [2008] EWCA Civ 1372, the court upheld the essence of the county court’s reasoning on fact-finding and disclosure to the Secretary of State, but confined disclosure to the Department for Children, Schools and Families and remitted the matter for the precise schedule.
2. Milton Keynes County Court. His Honour Judge Altman made findings and authorised disclosure in October 2005. After a review and rehearing, he delivered a reasoned judgment on 10 January 2007. Subsequent judgments and orders reduced the proposed recipients, but disclosure remained wider than the Court of Appeal considered justified.