D V BUCKINGHAMSHIRE COUNTY COUNCIL [2008] EWCA Civ 1372
FACTS:-
This case concerned the extent to which information that arose or facts found in the family proceedings should be disclosed to any person or body who would not, under the Rule of Court, be privy to them; and secondly as to the basis on which such disclosure should be made.
In 2005, an Indian man “J” arrived in the United Kingdom to be met by a man named “D” who took him to his home. A bus driver reported his concerns, and as a result a local authority took out an Emergency Protection Order and eventually took him into care. D had been employed as a teacher at a school in Indian where he had befriended J and offered to have him educated in the UK. D had in fact had a number of teaching jobs, some of which had ended in his dismissal because he had either lied about his qualifications or his behaviour towards students had been inappropriate, and amounted to “grooming.”
Eventually J returned to India.
In October 2005, a judge recorded a number of findings of fact before making no order on the local authority’s application under Part IV of the Children Act 1989. He also made order authorising disclosure of those findings to named bodies.
On the 13th February 2006, D applied to set aside this order and in November 2006, the judge effectively reheard the applications made in October 2005. On this occasions D participated and gave evidence. Eventually judgment was given in January 2007.
One of the issues in the case was whether the judge should have authorised disclosure of his findings in October 2005.
HELD:-
Mr Justice Headley said that under section 142 of the Education Act 2002 provision was made for an exclusionary list (“List 99”) of those prohibited from holding teaching posts in schools. This list was held by the Secretary of State for the Department for Children, Schools and Families (“DCSF”).
The Protection of Children Act 1999 also provided for an exclusionary list (“the POCA List”) which was the responsibility of the Department of Health (“DOH”), but was in fact operated by the DCSF.
Part 7 of the Care Standards Act 2000 introduced a further list (the “POVA List”) in relation to vulnerable adults which mirrors the POCA List.
Part 2 of the Criminal Justice and Courts Services Act 2000 conferred on the criminal courts the power to bar individuals working with children and a register of such order was also maintained.
Part V of the Police Act 1997 related to the provision of Criminal Record Bureau records (“CRB”) which in its current form, might be disclosed in two types of certificate. Section 113A provided for a standard certificate whereas Section 113B provided for an enhanced certificate, which included not only “spent” convictions but might (at the discretion of the “Chief Officer”) include allegations or findings made in civil proceedings of which the police had knowledge.
Different lists were bound to cause confusion, and consequently Parliament legislated to bring into force, the Safeguarding Vulnerable Groups Act 2006, the purpose of which was to harmonise and unify the various statutory lists. All lists would be replaced with two lists, the first related to adults and the second relating to children. Full implementation of that Act would take place in October 2009.
Barring decisions would be taken by the Independent Barring Authority which would in turn be known as the Independent Safeguarding Authority.
Full registration was discretionary (other than criminal convictions), and only after the person concerned has had the opportunity to make representations. The Care Standards Tribunal had appellate jurisdiction.
Headley J referred to two cases Re C (Disclosure: Sexual Abuse Findings) [2002] 2 FLR 375 and Re EC (Disclosure of Material) [1996] 2 FLR 725. He also referred to Article 8(1) of the European Convention on Human Rights.
D’s counsel submitted that there was no real and cogent evidence of a pressing need to disclose this information. The intended recipients were the Home Office, the DCSF and the High Commission of India.
Headley J said that as far as the DCSF were concerned, there was real and cogent evidence of a pressing need to disclose the findings in relation to D. D could always appeal to Independent Safeguarding Authority. The judge was also right to make a disclosure to the DCSF but not in relation to any other body including the High Commission of India. There was lacking any evidence of pressing need for disclosure outside the statutory framework. Therefore the judge’s judgment was to be upheld.
Keene LJ and Thorpe LJ agreed.
Thorpe LJ said that D should have been given notice of the intention to seek an order in October 2008. Moreover the original list of the recipients of the information about D was far too long, having some 25 organisations on it. He would confine disclosure to the DCSF. The justification for disclosure to the High Commission of India and the Home Office was unclear.
FACTS:-
This case concerned the extent to which information that arose or facts found in the family proceedings should be disclosed to any person or body who would not, under the Rule of Court, be privy to them; and secondly as to the basis on which such disclosure should be made.
In 2005, an Indian man “J” arrived in the United Kingdom to be met by a man named “D” who took him to his home. A bus driver reported his concerns, and as a result a local authority took out an Emergency Protection Order and eventually took him into care. D had been employed as a teacher at a school in Indian where he had befriended J and offered to have him educated in the UK. D had in fact had a number of teaching jobs, some of which had ended in his dismissal because he had either lied about his qualifications or his behaviour towards students had been inappropriate, and amounted to “grooming.”
Eventually J returned to India.
In October 2005, a judge recorded a number of findings of fact before making no order on the local authority’s application under Part IV of the Children Act 1989. He also made order authorising disclosure of those findings to named bodies.
On the 13th February 2006, D applied to set aside this order and in November 2006, the judge effectively reheard the applications made in October 2005. On this occasions D participated and gave evidence. Eventually judgment was given in January 2007.
One of the issues in the case was whether the judge should have authorised disclosure of his findings in October 2005.
HELD:-
Mr Justice Headley said that under section 142 of the Education Act 2002 provision was made for an exclusionary list (“List 99”) of those prohibited from holding teaching posts in schools. This list was held by the Secretary of State for the Department for Children, Schools and Families (“DCSF”).
The Protection of Children Act 1999 also provided for an exclusionary list (“the POCA List”) which was the responsibility of the Department of Health (“DOH”), but was in fact operated by the DCSF.
Part 7 of the Care Standards Act 2000 introduced a further list (the “POVA List”) in relation to vulnerable adults which mirrors the POCA List.
Part 2 of the Criminal Justice and Courts Services Act 2000 conferred on the criminal courts the power to bar individuals working with children and a register of such order was also maintained.
Part V of the Police Act 1997 related to the provision of Criminal Record Bureau records (“CRB”) which in its current form, might be disclosed in two types of certificate. Section 113A provided for a standard certificate whereas Section 113B provided for an enhanced certificate, which included not only “spent” convictions but might (at the discretion of the “Chief Officer”) include allegations or findings made in civil proceedings of which the police had knowledge.
Different lists were bound to cause confusion, and consequently Parliament legislated to bring into force, the Safeguarding Vulnerable Groups Act 2006, the purpose of which was to harmonise and unify the various statutory lists. All lists would be replaced with two lists, the first related to adults and the second relating to children. Full implementation of that Act would take place in October 2009.
Barring decisions would be taken by the Independent Barring Authority which would in turn be known as the Independent Safeguarding Authority.
Full registration was discretionary (other than criminal convictions), and only after the person concerned has had the opportunity to make representations. The Care Standards Tribunal had appellate jurisdiction.
Headley J referred to two cases Re C (Disclosure: Sexual Abuse Findings) [2002] 2 FLR 375 and Re EC (Disclosure of Material) [1996] 2 FLR 725. He also referred to Article 8(1) of the European Convention on Human Rights.
D’s counsel submitted that there was no real and cogent evidence of a pressing need to disclose this information. The intended recipients were the Home Office, the DCSF and the High Commission of India.
Headley J said that as far as the DCSF were concerned, there was real and cogent evidence of a pressing need to disclose the findings in relation to D. D could always appeal to Independent Safeguarding Authority. The judge was also right to make a disclosure to the DCSF but not in relation to any other body including the High Commission of India. There was lacking any evidence of pressing need for disclosure outside the statutory framework. Therefore the judge’s judgment was to be upheld.
Keene LJ and Thorpe LJ agreed.
Thorpe LJ said that D should have been given notice of the intention to seek an order in October 2008. Moreover the original list of the recipients of the information about D was far too long, having some 25 organisations on it. He would confine disclosure to the DCSF. The justification for disclosure to the High Commission of India and the Home Office was unclear.