Safeguarding checks and Non parties

CAFCASS made an application to the Court for orders (i) requiring CAFCASS to undertake safeguarding checks regarding the stepfather of two children and (ii) requiring the mother of the children to provide CAFCASS with such information about him as is necessary for those safeguarding checks to be made. 

The mother and stepfather were both opposed to the safeguarding checks being carried out in respect of the stepfather. The mother and stepfather believed that they had already endured a great deal of intrusion from CAFCASS.  Furthermore, they believed that the true motivation for requesting the checks may be to satisfy the father’s desire to know the background of the stepfather.

The mother and father had two children aged 14 and 10.  The father had not seen either of his children since 2004.  The mother had been married to the children’s stepfather for eight years and they had a further child together.  At a fact finding hearing in 2006, it was determined that the father had assaulted the mother in 2004 and that the mother had suffered post traumatic stress disorder (PTSD) as a result of that assault.  The PTSD would revive at the very thought of contact.  During those proceedings, the mother was given permission to move abroad with the children. 

The father was permitted indirect contact but this broke down.  The mother moved back to the jurisdiction and when the father became aware of this fact in 2011, he made an application for contact.  Psychiatric reports were carried out on both parents and concluded that the father posed no significant risk to the mother or children.  However, this was contrary to the mother’s perception and she was to undergo cognitive behavioural therapy (CBT) before any contact could take place. 

A CAFCASS officer was appointed to represent the children as their Guardian.  Both children expressed to the officer positive views in respect of the father and that they wished to see him.  In contrast, the children were very negative towards their stepfather.      

At a hearing in October 2013, it was agreed that indirect contact should resume after the CBT had concluded.  It was during that hearing that the Guardian raised the issue of safeguarding checks against the stepfather in light if the children’s comments.  The stepfather refused consent and hence the application was made.  CAFCASS were not aware of a comparable application coming before the Courts before and, therefore, sought guidance on the correct approach to be taken.

In his judgment, Mr. Justice Bodey concluded that it was not necessary for the court to be prescriptive as to whether safeguarding checks must always be carried out on non parties or only where they are justified.  It was not necessary as the circumstances of the case and the particular relationships would determine that.  However, he expected in most cases the consent of any partners would be sought for such safeguarding checks to be carried out.  CAFCASS would have discretion as to whether to make an application to the Court in the face of a refusal of consent.  However, he believed the refusal ought to be noted in the Safeguarding Letter filed with the court prior to the First Hearing Dispute Resolution Appointment (FHDRA).    This would enable the Judge to decide whether the hearing should proceed or whether any further action or representations are required. 

The following general points were made about safeguarding and third parties:

  1. that there is a public interest in the court having information which may be relevant to its determination of a child's welfare in private law proceedings;
  2. that any relevant individual who is not a party has a right to respect for his private life, which includes maintaining the privacy of data retained about him by Local Authorities and the Police;
  3. that the court must therefore balance the individual's right to privacy against the public interest in the due administration of family justice and the need to safeguard the children who are the subject of the proceedings;
  4. that, since it is mandatory under the CAP for safeguarding checks to be completed on the parties to the application, departure from that approach for individuals who are part of the same household as the child should logically and generally require some good reason;
  5. that the nature of the application before the court, whilst a relevant consideration, is not determinative since the court's concern for the welfare of the child is not necessarily limited to making those orders specifically applied for by the parties;
  6. that the safeguards about the handling, transmission and storage of data provided within the Disclosure Protocol between CAFCASS and ACPO must be applied to any disclosure of information concerning other relevant individuals from the Police and/or from Local Authority records; and
  7. that the court should generally require undertakings from CAFCASS about (a) the confidentiality of information which it obtains by way of safeguarding checks; (b) its duty to pass to the court only such information as may be relevant to the issues in the case or to the general welfare of the child; and (c) its duty not to disclose any of the information obtained to anyone else without the leave of the court.