In Re: J (A Child) (Care Proceedings: Disclosure) a local
authority started care proceedings in respect of a child aged about
11 months who had been accommodated with them since shortly after
The day before the hearing of an application for an interim care
order, the foster father having been arrested on suspicion of
involvement in child pornography, the authority moved the child to
another foster home. They had him medically examined, without
giving the mother the true reasons, telling her it was routine. She
was also told that the carers were unable to continue with the
placement for ‘personal reasons’.
At the hearing the authority did not inform the court of the
position. After six weeks a children’s guardian was appointed
and asked to see all the authority’s papers including a report on
the practice in the case. The authority resisted disclosure on the
grounds of public interest immunity and its duty of confidentiality
to the foster carers.
Mr Justice Wall ordered disclosure and held that the guardian
was entitled to see the report as it came within the scope of
Section 42 of the Children Act 1989. Questions of public interest
immunity and confidentiality did not arise in relation to the
guardian in view of the provisions of Section 42(3).
The judge criticised the authority stating that its
‘defensive, indeed obstructive’ attitude had
complicated the proceedings, increased costs and was “so
fundamental a breach of its duty to the child and the court that
censure is unavoidable”.
Comment: This was a case which demonstrated the problems caused
by the failure of the Children and Family Court Advisory and
Support Service (CAFCASS) to appoint a children’s guardian
promptly. Mr Justice Wall said the case could have been avoided if
the children’s guardian had been appointed within the
recommended target of two days from the institute of care
proceedings instead of the six weeks it actually took.
White and Sherwin Solicitors