[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> S v SP and CAFCASS [2016] EWHC 3673 (Fam) (09 December 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/3673.html Cite as: [2016] EWHC 3673 (Fam), [2017] 2 FLR 1079

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
TAUNTON DISTRICT REGISTRY

		Civil & Family Justice Centre 2 Redcliffe Street Bristol
		9th December 2016

MR JUSTICE BAKER:

1. These proceedings in open court for an alleged contempt of court are brought by a man whom I shall refer to as S against CAFCASS and a CAFCASS children's guardian, hereafter referred to as SP, for the alleged unlawful disclosure of information relating to proceedings under the Children Act 1989. The context of this application is a long-running and difficult dispute involving the two children of S and his former wife in which there have been a number of different applications to the court and in the course of which SP was appointed as the children's guardian.
2. It is unnecessary to set out in full detail the history of these proceedings for the purposes of this judgment. Of relevance are the following matters. S is a registered sex offender and is subject to a sex offender prevention order until July 2017. S is also the subject of a protection from harassment order following a conviction for harassment of the mother. That order expires on 31^st March 2017. Under the order he is not permitted to contact or communicate with the mother or the children or to attend their house or attend their schools.
3. There have been ongoing concerns about S's mental health and its impact on the safety and welfare of the children. In March 2014 S tried to hang himself outside the family home. The police attended the property and found him with a ligature around his neck. On that occasion he was detained under the Mental Health Act section 136. Despite the making of the protection from harassment order, allegations of harassment continued and on at least one occasion S was taken into custody following alleged breaches of the order. As a result of these matters, S has had no direct contact with the children since March 2014.
4. In the course of the proceedings, an order for indirect contact was made permitting him to send letters and cards to the children. According to a report prepared by SP, however, S is not in agreement with indirect contact and has not maintained such contact with the children.
5. It is plain from all that I have read that the proceedings have left S, who has been acting in person for most if not all of the proceedings, with a strong sense of injustice, and he has made a series of professional complaints about the conduct of various agencies and individuals involved in the case.
6. On 4^th December 2015, S submitted a complaint to CAFCASS raising a number of concerns about SP's activities as children's guardian. On 22^nd January 2016 SP received a telephone call from a police officer and in the course of their conversation disclosed certain information about the proceedings. It is this conversation which is the subject of this application and I shall consider it in more detail below. S subsequently discovered from the police that SP had discussed the family proceedings with the officer and on 31^st January 2016 S lodged a further complaint with CAFCASS that sensitive information about him had been passed to the police without obtaining permission from him or the court. In a subsequent email he said, "Knowing that [he] had a history of self-harm and attempted suicide, CAFCASS was clearly trying to deliberately and maliciously cause [him] distress and anxiety so that [he] would try it again and, therefore, be out of everyone's lives and make everyone extremely happy."
7. On 5^th February 2016, CAFCASS wrote to the police and the family court stating that information had been disclosed without the court's permission, asking the police not to use the information, and seeking retrospective permission from the court to disclose it. I have not seen any response from the court or the police to this letter. Further correspondence ensued between S and CAFCASS and subsequently S, dissatisfied with the way his complaints to CAFCASS had been treated by CAFCASS, made a complaint via his MP to the Parliamentary and Health Service Ombudsman ["PHSO"].
8. Meanwhile, S, who had earlier withdrawn an application to the court, had filed another application seeking a child arrangements order, and in those proceedings SP as guardian on 29^th February 2016 filed a report incorporating a section 16(a) risk assessment. Her analysis concluded as follows:

"The welfare of [the children] is my paramount consideration when addressing their wishes for having contact with their father. I must balance the children's wishes alongside the consideration being given to the potential and/or on-going risks direct contact could have upon their welfare and safety in promoting contact. Without an expert assessment in addressing the unassessed risks, it remains my view that contact will not be in the children's best interests until this much-needed assessment can determine what risk management is needed in order to promote safe and appropriate contact for them. I am concerned with S's behaviour towards this process, given it is his application for contact with the children. I am gravely concerned by S's impeccably [by which I infer she meant "implacably"] hostile behaviour towards CAFCASS, the judiciary and the mother of his children. It is my view that this is a genuine cause for concern about S's intentions and focus in this litigation process.

"It is my professional view that S's current intentions are to cause issues in order to deflect his own feelings of his offending behaviour and blame others for not working with him. It is also my professional view that S has not kept the children at the centre of his application to the court. He has not been able to maintain a child-focused relationship with his children leaving them feeling let down by his lack of child-focused engagement. It is my view that, without a psychological assessment completed in respect of S, he remains unassessed and a potential risk to the welfare and safety of his children in proceeding with direct or indirect contact at this stage.

"I am concerned about the emotional impact S's indirect contact approach would have upon the children if the letter was shared with them. I am concerned that the children feel that they are on a roller coaster at times when their father asks for the contact and then withdraws his application. Both children continue to remain committed to the possibility of direct contact with their father. They are extremely disappointed when their father then withdraws his application to the court. S's emotional health continues to be of concern. He behaves in an impulsive and accusatory way which has impacted on being able to work with him in a way that addresses the welfare issues of the children."

9. On 2^nd May 2016, S filed another application in the court in form C2 which contained a number of applications including that "the court needs to open contempt of court proceedings against SP for breach of FPR 12.73." He similarly asked the court to open contempt proceedings against CAFCASS and the notice also included a request that the court opens contempt proceedings against others including the Local Authority Social Services, the police and the CPS. It also included an application for "full custody" of the children, disclosure of documents from the police and a number of other agencies, and permission to attend the children's school. S filed a further application in form C2 on 24^th June in which he raised a number of further complaints concluding with the following:

"Allowing CAFCASS any contact with the children means this court approves state-sanctioned child abuse, the ongoing failure of CAFCASS to engage the applicant in a fair and non-discriminatory way, the failure of the court to properly hold a contempt of court hearing against CAFCASS,"

and a little later concluding,

"It is clear that any final decision will be appealed by the applicant given that His Honour Judge Bromilow refused to hear the contempt of court against CAFCASS. There is no chance of the applicant seeing his kids before the restraining order ends on 3^rd March 2017 which is a better result than suffering abuse at the hands of the court and CAFCASS."

10. On 8^th July 2016, directions were given by the district judge in respect of a number of the applications and issues raised by S but not, so far as I can see, the contempt issue. The district judge listed the disclosure application against the police before Judge Bromilow.
11. Around the beginning of August 2016 (the date is unclear to me from the papers I have received) the PHSO upheld S's complaint about the way that CAFCASS had handled his complaints to them and made the following recommendations:

"(1) the chief executive of CAFCASS apologise to S for their handling of the complaints;

(2) pay S £250 in recognition of their poor handling of his complaints;

(3) the chief executive of CAFCASS apologise to S for the distress caused by incorrectly disclosing information to the police;

(4) pay S £100 in recognition of the distress arising from the information disclosure;

(5) CAFCASS to create a management plan to enable S to submit his complaint about the guardian appropriately;

(6) CAFCASS to promote the full response to S's complaints about the guardian within the usual 15 working day timetable frame from receipt;

(7) CAFCASS to issue a reminder to staff about the rules for sharing information with third parties such as the police and Local Authorities which does not relate to the furtherance of child protection."

12. The PHSO also recommended that, within the next twelve weeks, "CAFCASS review their complaints procedure and behaviour policy to consider adding points such as the consideration of issuing behaviour warnings and equality and diversity factors. CAFCASS should also ensure that such policies are applied consistently and, where relevant, consideration of equality and diversity factors are clearly recorded."
13. The hearing before Judge Bromilow ordered by the district judge took place on 1^st August. On that occasion Judge Bromilow's order, insofar as relevant to this application, stated as follows:

"Upon hearing the applicant in person and hearing the solicitors for the respondents, and upon hearing counsel for the Chief Constable and upon there being no legal representative for CAFCASS in respect of a contempt issue raised against them

And upon the court reading the trial bundle and in addition a letter from the PHSO upholding a complaint by the applicant against CAFCASS and awarding compensation

And upon the applicant saying to the court that, notwithstanding their adjudication and award of the PHSO, he seeks to hold CAFCASS in contempt of court for them to be fined and for SP to be committed to prison

And upon the court informing the applicant, but clearly not giving legal advice, of the grave, serious and complicated nature of contempt proceedings which are not to be taken lightly in the context of CAFCASS and a CAFCASS officer carrying out her professional duties to the court,

It is ordered … the applicant shall reflect upon his application for contempt of court against CAFCASS and should he wish to pursue such application he shall inform the court and CAFCASS of such intention no later than twelve noon on 31^st August 2016. In the absence of such notice, the application for contempt shall stand dismissed."

The judge proceeded to give further directions in the proceedings including directions for disclosure and for further hearings of S's application in respect of the children. It is unnecessary for me to refer to those directions for the purpose of this judgment.

14. Subsequently S indicated that he did wish to proceed with his contempt application and, for that reason, Judge Bromilow, who of course has direct experience of the work of the CAFCASS officer involved in the application, transferred the case to me.
15. On 13^th October, when sitting on circuit in Taunton, I gave directions to this effect:

"(1) the applicant shall by four pm on 20^th October file the following (a) a notice of application for committal in proper form seeking the committal of SP and CAFCASS; (b) a schedule setting out in detail the alleged breaches amounting to contempt of court; (c) an affidavit setting out all evidence relied on in support of his case including evidence that a contempt of court has been committed and evidence of any harm or damage that he has suffered as a result of the alleged contempt:

(2) SP and CAFCASS shall by 4pm on 10^th November 2016 file and serve affidavits setting out their evidence in reply and do attach thereto all records of any conversations between SP and the police officer relevant to this application;

(3) CAFCASS and SP shall file and serve a skeleton argument by 4pm on 22^nd November 2016;

(4) the applicant shall file and serve a skeleton argument by 4pm on 29^th November 2016;

(5) CAFCASS shall by 4pm on 1^st December 2016 deliver a bundle for the hearing to the clerk to Mr Justice Baker;

(6) the application to commit be listed for a hearing before Mr Justice Baker sitting at the Bristol and Civil Family Justice Centre not before twelve noon on 2^nd December 2016, time estimate half a day;

(7) costs reserved."

16. On 15^th October S filed an application in accordance with Part 18 of the Family Procedure Rules stating, "I [S] of NFO intend to apply for an order (a draft of which is attached to this) that SP of CAFCASS committed a contempt of court under FPR 37 and CAFCASS for lack of policy because they deliberately disclosed inappropriate information to [the police] in breach of FPR 12.73." He did not as far as I am aware attach a draft order to the application but did enclose a statement to which I shall refer below. CAFCASS and SP subsequently filed affidavits and the bundle was duly served as directed. Unfortunately, because of other commitments, I was unable to hear the case on 2^nd December and, therefore, adjourned the hearing in Bristol to 8^th December. Informing S of this adjournment caused difficulty because S has refused to provide the local court with contact details. The only communication possible with S is via Ms Melanie Carew of CAFCASS Legal to whom S has provided his email address on condition that she did not pass it on to anyone including anyone else in CAFCASS.
17. Following the adjournment, S filed a skeleton argument in accordance with my directions. I shall consider the substance of his argument below but the document begins with the following observations about the adjournment:

"Vacated hearing; (1) this hearing is a Taunton based case between a homeless Taunton man and a worker at the Taunton office of CAFCASS;

"(2) Judge Baker listed the hearing scheduled for 2^nd December 2016 for his own convenience;

"(3) the applicant asked for financial recompense for having to travel to Bristol, the court refused this request;

"(4) the date was set with an open time so that the applicant could purchase a train ticket in advance so that it could be affordable;

"(5) in vacating the hearing the court has created a situation where the applicant can no longer attend any hearing in Bristol due to the financial distress it will cause;

"(6) the applicant has lost money on a non-refundable train ticket and the court expects the applicant to purchase another ticket in the hope that the next hearing will go ahead as scheduled;

"(7) this was already scheduled to be the fifth hearing over eight months, the fact that this case has dragged on for so long is extremely distressing to the applicant;

"(8) the vacating of the hearing is the latest in a long line of abuse that the applicant has suffered at the hands of a legal system which is destined to deny him justice and keep him in the gutter."

18. The hearing proceeded on 8^th December as directed but S did not attend. The case was listed at twelve to assist him and others in travelling from Taunton to Bristol but the court waited until two pm before proceeding. I asked to be shown emails passing between Ms Carew and S with the details of S's emails redacted and I am satisfied that S was informed of the hearing date on 8^th December and, furthermore, has received all relevant documents including statements, affidavits and skeleton arguments and indeed a copy of the whole bundle prepared for this hearing. Furthermore, it seems to me plain from the passage in the skeleton argument to which I have referred he had decided not to attend the hearing.
19. The options open to this court were, therefore, (1) to dismiss the application forthwith, (2) to adjourn the application again or (3) to proceed in the absence of S. Bearing in mind that S, with clear knowledge of the hearing date, had indicated that he was not intending to attend the hearing and was not applying for an adjournment but, rather, had set out his arguments in full in his skeleton argument and supported by statements, I concluded that the right course was to proceed in his absence. That course it seemed to me was also fair and proportionate – fair to all parties including SP who has been subject to this application to commit her to prison for over seven months.
20. I now turn to the substance of the application. The application arises out of a conversation on 30^th January 2016 between SP and the police officer. The attendance note appended to SP's affidavit reads in full as follows:

"The police are investigating Mrs S and wanted to gather an idea of the family proceedings that are current. They said that S had made historical allegations against Mrs S for sexual assault. He alleges that this took place in 2002. They said they had to investigate all crimes. They had interviewed Mrs S with her solicitor and wanted to have an overview of the family law case. I informed them that there have been long private law proceedings which have not found any resolution in a direct order for contact at this stage between S and the children. I said that one child knew about the father's history. He Googled it after his father left the family home. The other child has no idea of the father's offending history and is only eight years old so has been completely protected by Mrs S. I said that we are currently concerned about S's emotional health and the impact this would have on the children.

"I said that we are looking at having an expert to assess the family but father has said that he will not engage in the process. I said that at the next hearing the judge will look at what happens next (1) whether he have an expert purely looking at the family papers to address any of the risk factors to progressing contact; (2) to have an order to stop S from making further application to the court which has a detrimental impact on the children's emotional wellbeing. I said that I had been concerned about S's emotional health and I had to balance this against the protection and welfare of the children. I said that I had made a referral to adult social care because of my concerns about a letter he wrote to the children that I have not passed on to them. There were indications that he may have thought about taking his own life. I was concerned for him.

"I said that mother has a restraining order preventing him from contacting her and the children. The police knew that he had breached the orders previously. I said that he had and it was before my involvement but when it was with another practitioner in the previous proceedings. I said that I had been concerned that S is finding it difficult to be child-focused. The children still wish to have contact with their father and have been protected as much as we can from his complaints that he currently has about the courts and the judiciary and his ex-wife.

"The police asked about how and why contact has not progressed. I said that the welfare issues needed addressing before we can be satisfied that contact will be safe both emotionally and physically for the children and how that would be managed. I said that S's SOPO [sexual offences prevention order] has prevented contact from moving to a contact centre previously because of the constraints around his order.

"The police asked if S was open to any mental health services and I said that I thought he was not but that he had in the past due to issues of suicidal ideation. The police said they would update me when they had made a decision about his allegations."

21. I do not have an equivalent attendance note from the police but S has disclosed to CAFCASS Legal by email dated 30^th October 2016 an email he received from the police in the course of his complaint against the police officer. That email from another police officer (as I understand it, an officer investigating a complaint by S against the police officer who had conducted the investigation and spoken to SP) states inter alia that the officer concerned ("C")

"has provided me with an account. He explained that his contact with CAFCASS arose out of his investigation into your complaint that your wife had committed an offence of controlling or coercive behaviour. C said that she also suggested that your wife was preventing you from securing access to your children. Subsequently a DVD interview was undertaken. During the investigation into these allegations, C had contact with a member of staff at CAFCASS. A log entry was recorded of this contact on the relevant criminal investigation database. The purpose of that contact was to attempt to establish the facts surrounding the on-going family proceedings to confirm the information you had provided to C. C was concerned that your perspective may be skewed. He, therefore, had an obligation to seek third party information to establish how much reliance could be placed on your account. C believed this approach was appropriate. During the contact with CAFCASS, C was informed that a psychiatric report was outstanding and that further contact with your children may be difficult without the court being able to make an informed risk assessment. At the conclusion of the investigation, C submitted a report to his manager to review. The review confirmed C's assessment that the available evidence did not pass the full code test, therefore, was not to a standard which would result in a charging decision being sought from the CPS."

The officer investigating S's complaints against the police officer added that "the decision by CAFCASS to release information in the circumstances that transpired is an issue for yourself and CAFCASS."

22. It is the conversation that took place between SP and C on 30^th January 2016 that is the subject of S's application to the court. He contends that in that conversation SP was acting in breach of the rules governing disclosure of information relating to children's proceedings and, therefore, SP and CAFCASS are in contempt of court.
23. On an application for a contempt of court, the burden of proof rests on the applicant and the standard of proof is the criminal standard, beyond reasonable doubt. Section 12 of the Administration of Justice Act 1960, insofar as relevant to this application, provides "(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be a contempt of court except in the following cases, that is to say ... (a) where the proceedings ... (ii) are brought under the Children Act 1989."
24. Rule 23.73 of the Family Procedural Rules 2010, insofar as relevant to this application, provides as follows, "(1) for the purposes of the law relating to contempt of court, information relating to proceedings held in private, whether or not contained in the document filed with the court, may be communicated (a) where the communication is to ... (viii) a professional acting in furtherance of the protection of children ... (b) where the court gives permission."
25. S has filed two statements in support of his application or, rather, one statement and one document described as an "affidavit". In the statement dated 15^th October he states as follows;

"(1) In October 2015 I made a criminal complaint of historic domestic abuse against my ex-wife.

(2) Upon giving my statement to the police they said that they could only investigate the two incidents of sexual assault due to time issues.

(3) On 24^th November 2015 the family hearing restarted into allowing me contact to see my children.

(4) At the hearing I made a statement to the court critical of its performance and the bias of CAFCASS and SP against me.

(5) SP has failed to engage with me in a fair and neutral way, she has also dismissed out of hand all issues I have raised with her.

(6) At the hearing on 4^th December 2015 correspondence from my children was handed to me. These letters were handed to SP at the hearing on 24^th November 2015 but she deliberately withheld them from me.

(7) There was no justifiable reason for failing to supply me with these letters in over two weeks.

(8) The letter from [S's son] is the only letter I have received from him in the two years that CAFCASS [sic]

(9) As a direct result the court order was changed and CAFCASS had 24 hours to inform me of correspondence from my children.

(10) On the same day I made a formal complaint to CAFCASS about SP.

(11) During the following week I received a call from the line manager of SP about the abuse I was suffering at the hands of SP, she informed me that I needed to make a formal complaint.

(12) As the court is aware, CAFCASS began a campaign of bullying and discrimination against me resulting in the damning PHSO report of 30^th August 2016.

(13) On 11^th December 2016 I made a C2 application asking the court to investigate CAFCASS into their irrefutable powers against me.

(14) I made a C79 application due to the failure of the respondent with the assistance of CAFCASS to adhere to the contact order.

(15) At an unknown date the local police contacted SP and she then proceeded to deliberately and maliciously pass on extremely sensitive information that was in breach of FPR 12.73.

(16) The police then came to my residence to inform me that due to lack of evidence they were unable to proceed with the sexual assault investigation.

(17) The police then informed me that they had been in contact with CAFCASS which greatly alarmed me. I was told the following (a) that I would never see my kids again unless I saw a psychiatrist and (b) that the police were going to extend my restraining order even though it had 15 months to run and they were not a party to it with the assistance of CAFCASS.

(18) I found the meeting so distressing that I ascertained the following information from it (a) that CAFCASS were using the police to bully and pressure me into seeing a psychiatrist against my will, (b) that CAFCASS has no interest in ever letting me have any contact of any form with my children and will do everything in their power and will even abuse that power to ensure the alienation with my children continues, (c) that CAFCASS will use all means possible to personally cause me as much anxiety as possible.

(19) The distress was so great I contemplated suicide as I felt that without my children there was no point in living and it was and is clear that CAFCASS was so biased against me I will never receive a fair hearing as long as they remain involved.

(20) I made the second complaint to CAFCASS about SP when I was unaware at the time of FPR 12.73. I made it as a breach of the Data Protection Act.

(21) The complaint was covered up by [SP's line manager] and currently in the hands of PHSO. A formal complaint of [the line manager] will be placed once CAFCASS honour the findings of the PHSO report.

(22) On 1^st December 2016 I informed the court of the data breach.

(23) Despite this, as the letter from SP dated 5^th February 2016 the district judge decided that the significant issue and the distress caused was unworthy of a hearing and let it lie with the original hearing scheduled for 7^th March 2016.

(24) the letter to the court was a personal attack on me.

(25) On 20^th February 2016 I received the 'findings' of the investigation of [SP's line manager] into the breach but it was not completed correctly as per the complaints procedure of CAFCASS.

(26) On 25^th February 2016 [SP] completed a very inappropriate risk assessment on me that was clearly designed to deflect attention from her.

(27) When I asked the district judge to imprison SP and fine CAFCASS he said to me that there was "nothing" he could do. This is his default response to me.

(28) It was only when I discovered about contempt of court proceedings I made the C2 application. This should have been brought by the district judge but is the latest in a very long line of procedural and administrative failings I have suffered at his hands.

(29) I asked for CAFCASS to be removed from the case but the district judge for no justifiable reason [sic]. I am stuck with an officer who is obsessed with indirect contact even though it has never worked and who blames me for lack of engagement even though I have text messaged proving he [sic] is the one who has cancelled meetings;

(30) the relationship with CAFCASS is so untenable I can no longer continue with the proceedings;

(31) I am resigned to the fact that CAFCASS and the respondent will do whatever they can to ensure that I will never see or hear from my kids again for the rest of my life;

(32) because of this bullying and abuse I expect a significant custodial sentence for SP and a large six figure fine for CAFCASS."

26. In his "affidavit" dated 18^th October, (although I am unsure whether it technically amounts to an affidavit), S asserts that SP committed a contempt of court and as a result of the breach of FPR 12.73 he suffered significant psychological damage and irreparable damage to the relationship with CAFCASS and that as a result of the abuse he had suffered at the hands of CAFCASS he was obliged to withdraw his application to see his children as he was no longer prepared to suffer bullying at the hands of CAFCASS. He repeated further assertions in similar terms to those set out in the statement that I have already read.
27. In his skeleton argument in support of his application, S began by setting out his points on the adjournment which I have already quoted. He makes a number of further points all of which I have considered. Much of the skeleton argument covers the same ground as set out in his statement to which I have already referred. Of the actions of SP, he observes inter alia that, rather than accept responsibility for her actions, she has gone on to attack him for having the audacity of making a complaint against her, that at no stage did she ask C whether there were child protection issues nor did C tell her there were child protection issues in the course of the conversation. The only questions answered by SP during her conversation with C related to questions about S and that at no stage were child protection issues raised or discussed. He further said that SP subsequently submitted what he described as a "highly inflammatory and inaccurate risk assessment" in a deliberate attempt to discredit him.
28. As far as the actions of CAFCASS are concerned, he drew attention to the fact that the PHSO had found the actions and the proceedings of CAFCASS to be to unacceptable standards. He asserted that CAFCASS had failed to adhere to the recommendations of the PHSO so that the issue was now with the PHSO's senior management. He further asserted that CAFCASS had not taken any disciplinary action against SP, thereby condoning the disclosure and asserting that CAFCASS did not take its responsibilities seriously in ensuring his personal information and that relating to the court was kept private and secure.
29. As to the impact of these actions on him, he asserted that SP failed to consider the mental impact of the disclosure on him and repeated the assertions set out in his statement that it was clear that CAFCASS did not want him to have any contact with his children. He asserted that SP and his former wife had conspired to ensure that there was no contact and that SP had gone out of her way to destroy a loving relationship between father and children. He asserted that SP was unfit to continue as a social worker and should be dismissed and repeated his assertion that SP should receive a custodial sentence and CAFCASS a significant fine. I have considered all of these arguments carefully.
30. In skeleton arguments filed on behalf of CAFCASS and SP, both have identified procedural irregularities on S's part in bringing these applications but indicated that they anticipate that the court will wish to deal with the substance of the matter. I, therefore, put those procedural errors to one side.
31. On issues of substance, CAFCASS, in a legal submission filed by CAFCASS Legal, assert, first, that the information shared by SP with C did not come within the definition of "information relating to proceedings" as considered and defined by Munby J (as he then was) in Re B (A Child) Disclosure [2004] EWHC 411. It is CAFCASS's contention that the information amounted to no more than giving a general indication of the nature of the proceedings rather than more detailed disclosure. They further assert that the disclosure was not publication within the meaning of section 12 of the 1960 Act.
32. Their more substantial point, however, is that there was no breach of Rule 12.73 because C was acting "in furtherance of the protection of children" when he had the conversation with SP. CAFCASS submits that C was investigating a complaint of abuse which included prevention of contact and that this was inevitably an issue of child protection given that there were children in the family. They submit that the attendance note demonstrates that there was a child protection element to the conversation. Given the responsibilities of the guardian to safeguard and promote the welfare of children, it was appropriate for SP to discuss her overview of the case with another professional who had been brought into the dispute by the applicant himself making a serious allegation of domestic abuse. The sharing of information between professionals engaged in child protection is a fundamental principle of all enquiries following a serious case review. It is submitted that SP did no more than alert the officer to her concerns.
33. On behalf of SP, Ms Melissa Barlow makes a number of submissions citing authorities on the misuse of contempt proceedings asserting that this is an application driven in large measure by a man seeking retribution for a perceived injustice which has little or nothing to do with his application for contact. In view of my decision on the substantial issue in this case I do not think it necessary to consider this aspect of her submissions. On the substance, Ms Barlow effectively adopted CAFCASS Legal's arguments whilst adding that, even if the court were not satisfied that this was a straightforward case of proper disclosure under Rule 12.73, the applicant could not prove anything approaching the requisite standard that it was a deliberate or intentional contempt of court. Again it is unnecessary for me to consider that aspect of her submissions in view of the decision I have come to on the principal issue.
34. CONCLUSION: I do not accept the submission by CAFCASS Legal, adopted by Ms Barlow, that this disclosure was not a disclosure of information relating to proceedings. In my judgment, it went further than the disclosure of the general nature of the dispute and was in truth information of some details of the proceedings. The key issue to my mind is whether SP acted in breach of the rules, i.e., whether her disclosure of information fell within what is permitted under Rule 12.73. The phrase, "a professional acting in furtherance of the protection of children," must, in my judgment, be given a broad interpretation. Had the words in the rule been to the effect of "in connection with an investigation into an allegation of child abuse," the disclosure permitted would have been much narrower but "in furtherance of child protection" plainly permits the disclosure of information by CAFCASS to a police officer in a conversation that arises in the course of investigation by the police including acts of domestic violence or abuse within the family.
35. This case involved a history of allegations and cross-allegations between the parents and a conviction for harassment and the impact of those matters on the children, all of which plainly give rise to harm or risk of harm to the two children of the family. As she set out in her Rule 16.4 risk assessment quoted above, the guardian was concerned that S's behaviour, including his hostile behaviour towards the mother, was continuing to have an adverse effect on the children.  The police's investigation into S's complaint concerning the mother's alleged abuse of him inevitably involved consideration of the historic issues between the parties and the impact on the children. The scope of the police investigation clearly involved issues which impinged on the children's safety and welfare.
36. A series of public inquiries in this country have identified the need for agencies to work together in order to protect children. That is the context in which the Family Procedure Rules have to be interpreted and applied. Too narrow an interpretation of the rules would, in my view, jeopardise the welfare of children. It is axiomatic that the administration of justice and the protection of children requires disclosure of information between professionals to ensure that children are protected. In this case the police were investigating allegations of abuse between adults in a family and as part of the investigation asked the CAFCASS officer for details of the background. Part of the purpose of the conversation, in my view, was plainly the furtherance of child protection. The dispute between the adults, the history of harassment by S leading to the restraining order and the further allegations by S against the mother plainly raised concerns of professionals about the risk of harm to the children.
37. In my judgment, the police officer investigating allegations against the mother in the context of the history of harassment by S of the mother and the concerns of the impact of these matters on the children was acting in furtherance of child protection within the meaning of Rule 12.73. I, therefore, consider that, in the circumstances of this case, the guardian was not acting unlawfully by disclosing information to the police in the telephone call on 30^th January 2016. On the contrary, I find that in disclosing the information she was acting in accordance with Rule 12.73(1)(viii). Accordingly, neither SP nor CAFCASS is in contempt of court and S's application is dismissed.
38. This case has demonstrated, however, that there is a measure of uncertainty as to how FPR 12.73 operates in these circumstances. It is plainly desirable that professionals acting in this field should have clarified as to the interpretation of the rules. I respectfully invite the Chief Executive of CAFCASS to consider whether further guidance for guardians and CAFCASS officers is needed. In cases of doubt, professionals should always, as a precautionary step, apply to the court for permission to disclose information.
39. I conclude my judgment by saying that, whilst recognising the depth of S's feelings about this case and acknowledging the problems he has suffered, I have no evidence to justify his vituperative allegations against SP. From what I have read, it seems plain that she has acted conscientiously and professionally with a proper focus of the welfare on the children caught up in this dispute.
______________________