D (Child)

Safeguarding checks on a non-party household member are not automatically required in every private-law children case. Their necessity depends on the circumstances and should not be determined by a blanket judicial rule. Where checks may produce information relevant to the child’s welfare, the court must balance that public interest against the individual’s right to respect for private life and data privacy. A refusal to consent should normally be brought promptly to the court’s attention. Any disclosure must be proportionate, confidential and limited to information relevant to the issues or the child’s welfare.

CAFCASS sought orders requiring a mother and her husband, the stepfather of two boys, to co-operate with safeguarding checks and provide identifying information. The stepfather was not a party to the father’s underlying contact application. The application was made after the children had expressed strongly negative views about the stepfather and the Children’s Guardian had raised concerns about their welfare. The mother and stepfather opposed the checks, relying on their intrusive effect and the fact that the family arrangements had existed for years. The central issue was whether safeguarding enquiries concerning a non-party household member were justified and proportionate.

1. Application granted in substance. The court directed the mother and stepfather to reconsider their refusal and co-operate with CAFCASS. The information obtained was to be handled under the court’s oversight and only relevant information was to be disclosed.
2. Safeguarding enquiries concerning partners and other third parties are not governed by a universal rule requiring either routine checks in every case or checks only where a fixed threshold is met. The circumstances of the particular family relationships must be considered.
3. There was a public interest in the court having information relevant to determining children’s welfare in private-law proceedings. A non-party household member nevertheless retained a right to respect for private life, including privacy in information held by the police and local authorities. The court therefore had to balance those competing interests.
4. The long-standing nature of the family unit, the lateness of the request and the intrusive effect of the father’s proceedings weighed against the application. The children’s expressed views about the stepfather and the possibility that relevant background information could assist decisions concerning their welfare weighed in favour. On balance, carefully regulated checks were proportionate.
5. Where a partner or other relevant household member refuses consent, CAFCASS should ordinarily record that refusal in the Safeguarding Letter before the FHDRA. The judge should consider the issue without delay and, if necessary, allow the individual notice and an opportunity to make representations.
6. The safeguards in the Disclosure Protocol between CAFCASS and ACPO should govern handling, transmission and storage of information. CAFCASS should ordinarily undertake confidentiality, relevance and non-disclosure obligations.