The Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law (CASC) was asked to assist on the difficult question of the confidentiality of Court Welfare Officers and CAFCASS Reports; and the status of the reports in both public and private law proceedings which will be produced by Officers of CAFCASS.
CASC had the advantage of seeing a paper written by HH Judge Nigel Fricker QC which was prepared for and adopted by the York FCBC on 14 April 2000. CASC is in broad agreement with it.
CASC is very conscious that because of the tight time-table involved in the setting-up of CAFCASS, its opinion on the need for new rules, or amendments to existing rules to govern the confidentiality of CAFCASS officers' reports is likely to come too late to be of any practical use. That, indeed, was the message of a paper produced by Arran Poyser for the CASC meeting on 22 January 2001. However, having discussed the matter at three of its recent meetings, CASC thinks it nonetheless worthwhile to record its views, in the hope that they may contribute to future practice and any perceived need for the rules to be changed in the future.
CASC is in no doubt that Court Welfare Officers and CAFCASS Reports are covered by the confidentiality which governs all proceedings under the Children Act and all documents generated within those proceedings. CASC sees no reason why identical considerations should not apply to reports in both public and private law proceedings made by officers of CAFCASS. It follows, in CASC's view, that disclosure of a Court Welfare Officers Report or a CAFCASS report to somebody who is not a party to the proceedings without the court's permission is a contempt of court.
At the same time it is, CASC thinks, necessary to identify the mischief which the court is seeking to prevent by unauthorised disclosure. An obviously serious example would be sending a copy of the report to a newspaper. Equally serious, in terms of the damage which might be done to the children in the case, could be disclosure to an abusive partner or former partner of one of the parties, or to a relative or third party who had a particular animus against one of the child's parents.
CASC is therefore clear that not only should the confidentiality of Court Welfare Officers and CAFCASS Reports be retained, but that a warning about the need to preserve confidentiality should be prominently displayed on all such reports.
At the same time, of course, there undoubtedly are circumstances in which it is necessary for the proper conduct of the case for the report to be shown to third parties or its contents (or part of them) to be disclosed. The obvious example is where an expert witness such as a psychiatrist is instructed in the case to advise the court. But this presents no problem, because the report - along with the other court papers - can only be disclosed with the permission of the court, which will be sought at a directions appointment and - where appropriate - granted.
Similarly, it may well be the case - particularly with a report in public law proceedings - that a factual issue relating to a third party arises as a result of something in the report. The obvious example is where the CAFCASS Officer reports a conversation with a third party or says something about a third party with which one of the parents disagrees. Plainly, it should be possible for that parent's solicitor to take instructions on the point from the witness in question.
Equally, there may well be circumstances in which it is in the interests of the child and the conduct of the case generally that the report should be shown to and discussed with other family members - or the partner of one of the parents who is helping with the care of the child.
It follows, in CASC's view, that the current warning displayed on Court Welfare Officers Reports and printed in Judge Fricker's paper should be expanded to explain the fact that the report may be disclosed in certain circumstances - and in particular may be disclosed if the court gives its permission.
The principal difficulty lies with litigants in person. They are plainly entitled to have a copy of the report. It may be sensible for them to discuss the report with other members of the family - but then again it may not. Plainly, if this matter is to be addressed, two issues need to be grasped. Firstly, litigants in person must understand the confidentiality rule and the consequences of its breach. But equally, the process of applying for and obtaining the court's permission for disclosure needs to be clear.
Can all this be explained on the face of the document, or does it require rules? CASC thinks the matter is best addressed by rules, but also favours an expanded rubric prominently displayed as the first page of all Court Welfare Officers Reports and reports prepared by CAFCASS officers, perhaps along the following lines: -
This report has been prepared for the court. It is a confidential court document. It must not be shown - nor must any part of its contents be revealed - to anybody who is not a party to the proceedings, or the legal adviser of such a party, without the court's permission.
Any such disclosure of the report or any part of its contents without the court's permission is a contempt of court. Any person found guilty of such disclosure is liable to be punished by fine or imprisonment.
However, a solicitor acting for a party to the proceedings may take instructions from other witnesses about factual issues raised in the report. The Court Rules enable this to be done without the court's permission being formally sought. A solicitor may also show the report to the Community Legal Services Commission for the purpose of obtaining community funding.
If a party wishes to take the advice of an expert on the report, that party must obtain the court's permission before the report can be shown to the expert.
If you are acting for yourself and do not have a solicitor, the same rules apply and you must not show the report to anybody without the permission of the court.
You will have received the report directly from the CAFCASS officer. If, when you have read the report, you come to the conclusion that you need to show part or all of it to a particular person, or discuss its contents with that person, you will need to seek the permission of the court before you can do so. You should contact the court and the court staff will explain how you go about making an application for permission to show the report to a third party. You should also speak to the CAFCASS officer and ask if he or she has any objection to what you propose to do.
It is appreciated that this rubric is long, although it would be contained on one page. The rubric also raises the question of whether an application for disclosure could properly be made without notice. CASC thinks there are circumstances in which it could, and it would be sufficient, it thinks, if the rules gave the court a discretion to entertain an application without notice, alternatively the rule could provide that the application could in the first instance be made without notice and on receiving it the court could either grant it, or direct that it be heard on notice.
Provision could also be made for a leaflet to be prepared to be given to litigants in person spelling out in terms how an application for permission can be made as well as explaining confidentiality.
CASC see no reason - as it has already stated - to distinguish between reports written for private and public law proceedings. If anything, the problem is likely to be less acute in public law cases, since litigants in person are relatively uncommon.
The courts will need to keep a sense of proportion here. Whilst all disclosure is contempt, it is only deliberate disobedience - or where there has been real harm or risk of harm to the child - that the court is likely to want to act.
In both private and public law proceedings, CASC would imagine that it would be either one of the other parties to the proceedings or the CAFCASS officer who would bring the matter to the attention of the court. If the court then decided that action was necessary, the court would need to set in motion the contempt procedure. Wall J has certainly directed a guardian ad litem to take such proceedings, and CASC sees no reason why CAFCASS should not have the same power. The court would then deal with the contempt in the normal way.
CASC would be happy for CAFCASS to exercise a discretion - perhaps given by rules - to bring a possible contempt to the attention of the court if it thought appropriate and / or to institute proceedings.
CASC thinks that the power to withhold information does survive the HRA 1998, but it may be as well to spell this out carefully in the rules!