R v Norfolk County Council, ex parte M
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
[1989] 2 All ER 359, [1989] 3 WLR 502, [1989] 2 FLR 120, 1989 Fam Law 310, 87 LGR 598
HEARING-DATES: 6, 7, 23 FEBRUARY 1989
23 February 1989
CATCHWORDS:
Child -- Child abuse -- Child abuse register -- Register maintained by local authority --
Registration of alleged abuser -- Child making allegations of sexual abuse against
applicant -- Local authority convening case conference to consider allegations -- Case
conference deciding to place applicant's name on register and secretly inform his
employers -- Applicant given no opportunity to rebut allegations -- Whether case
conference acting unfairly and contrary to natural justice.
Judicial review -- Availability of remedy -- Child abuse register -- Register maintained
by local authority -- Registration of alleged abuser -- Child making allegations of sexual
abuse against applicant -- Local authority convening case conference to consider
allegations -- Case conference deciding to place applicant's name on register and secretly
inform his employers -- Applicant given no opportunity to rebut allegations -- Whether
case conference's decision part of authority's internal administrative procedures --
Whether case conference's decision subject to judicial review.
HEADNOTE:
The applicant, M, was a 55-year-old married man of good character who was employed as a
plumber. While he was working at the home of the parents of the complainant he allegedly
indecently assaulted her and obscenely exposed himself. The complainant was a 13-year-old
girl who had been recorded twice before by the local authority social services department
as having been the victim of sexual abuse, and who dressed and behaved precociously and
had an unsettled home life. The girl told her teacher that M had behaved indecently
towards her and both the police and the social services department were informed. The
police arrested M but he denied the girl's allegations the police decided to take no
action because of the lack of evidence and released him. A few days later the girl
complained of receiving improper advances from another man. The local authority convened a
case conference consisting of a senior social worker, another social worker, a police
inspector, a clinical assistant, the girl's schoolteacher and a consultant child
psychiatrist. The conference decided that the names of both M and the girl should be
placed on the authority's child abuse register and that M's employer should be informed.
M's name was accordingly entered on the register as a 'known/suspected abuser' and he was
notified of that fact but not that his employer had been informed. His employer instituted
an internal disciplinary inquiry and suspended him pending the outcome. M applied for
judicial review of the decisions made as the result of the case conference. The local
authority opposed the application, contending that the decisions of the case conference
and the registration of M on the child abuse register were not matters which were
susceptible to judicial review because they formed part of the authority's internal
administrative procedures.
Held -- The decision of a child abuse case conference convened by a local authority social
services department to register a person's name on its child abuse register as a child
abuser was not simply a matter of the local authority's internal administrative procedures
since it affected the rights of the alleged abuser. Accordingly, a case conference was
required to act fairly when making a decision whether to enter the name of the alleged
abuser on its child abuse register and if it acted unfairly or unreasonably in deciding to
enter a person's name on the register as a child abuser the court would grant judicial
review of the decision. In all the circumstances the local authority's case conference had
acted unfairly, unreasonably and in breach of natural justice by failing to consider
whether the complainant's accusations might be a fantasy or fabrication, in deciding that
M was guilty after a brief and one-sided investigation, in denying M the opportunity of
objecting or making representations and failing to inform him of the full circumstances
surrounding the decision, in maintaining its child abuse register in a slipshod manner
without making any distinction between known and suspected abusers and in deciding to put
secret pressure on M's employer. Accordingly, M would be granted an order of certiorari to
quash the case conference's decision.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 applied.
NOTES:
For care and welfare of children by local authorities, see 24 Halsbury's Laws (4th edn)
para 786.
For judicial control of administrative action, see 1 ibid paras 46--52. For natural
justice and the duty to act fairly, see ibid para 66.
CASES-REF-TO:
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1
KB 223, CA.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935,
[1985] AC 374, [1984] 3 WLR 1174, HL.
INTRODUCTION:
Application for judicial review
M applied, with the leave of Mann J given on 19 October 1987, for judicial review by way
of an order of certiorari to quash the decision of the respondent, the Norfolk County
Council acting by its social services department, to register M's name on the council's
register of child abusers following two case conferences on 10 June and 13 July 1987
convened by the social services department which had decided that M had sexually abused a
girl on or about 5 June 1987. The facts are set out in the judgment.
COUNSEL:
Roger Gray QC and Timothy Townshend for M
David Mellor for the council.
JUDGMENT-READ:
Cur adv vult 23 February. The following judgment was delivered.
PANEL: WAITE J
JUDGMENTBY-1: WAITE J
JUDGMENT-1:
WAITE J. This judicial review application arises from a complaint made by a 13-year-old
girl to her schoolteacher that the plumber working in her parent's home had behaved
indecently towards her. The girl was interviewed by the police and a social worker to whom
she repeated the allegation. When the plumber was interviewed by the police he strenuously
denied it. The police took no further action. The local authority's social services
department, without notice to or contact of any kind with the plumber, convened a case
conference. It recorded a finding that the plumber had committed sexual abuse of the girl
and resolved that both her name as victim and his as abuser should be entered on their
child abuse register. The plumber's first contact with the local authority was the
receipt of a letter informing him of that decision. He was later summoned by his employers
to attend a disciplinary interview, on the ground that his name appeared on the register
as an abuser, and he was suspended from his work in the mean time. That disciplinary
interview has been adjourned to await the outcome of these proceedings and the plumber has
been allowed to work in the interval on condition that he is never unaccompanied in
occupied premises. He has obtained leave to apply for judicial review of the case
conference decision and of his consequent registration as an abuser. The local authority
oppose review on the ground that neither the decision nor the registration are actions
which are capable by their nature of being reviewed judicially at all, or which, if
reviewable, offend reason or infringe any applicable rule of natural justice. These
are issues of some importance, to which it is impossible to do justice without a more
detailed examination both of the child abuse registration system generally and of the
circumstances in which it was operated in the present case. Child abuse registers
(or child protection registers as the Department of Health and Social Security (the DHSS)
would prefer them to be called) have been in general use since the early 1970s. They have
no statutory authority, but the basis of their operation has been prescribed by a series
of departmental circulars of which the most recent is LASSL(80)4HN(80)20. They were
intended initially as a register of children at risk from physical or emotional suffering
or deprivation through non-accidental injury or parental inadequacy or neglect. That
function was extended during the early 1980s to include cases of sexual abuse, with the
approval of the DHSS handbook 'Child Abuse--Working Together' published in
draft in April 1986. It has always been an essential feature of the registration
system that no name can be placed on the register without the authority of a case
conference. That is a body described in the handbook as an 'Inter-professional meeting'.
It is normally chaired by a senior social worker and attended by representatives of other
agencies or professional disciplines. The function of case conferences is stated in the
handbook to be advisory, though one suspects that in practice their decisions are treated
as mandatory. They certainly have at least one directory function, because both the
circular and the handbook stress that the authorisation of a case conference is an
essential preliminary to registration. The circular and handbook also both emphasise
the importance (save in exceptional cases) of notification to and consultation with the
parents or other carers before the name of a child is entered on the register. No guidance
appears to be given by either document as to the extent (if any) to which those whom it is
proposed to register as abusers should be entitled to notice or consultation. Access
to the information on the register is not restricted to the authority's own social
workers. Entries may also be inspected by a fairly wide but carefully defined section of
the public. It consists, broadly speaking, of the people or agencies whom one would expect
to find present or represented at a case conference. If either the registered victim or
any registered abuser moves to the area of another authority, the receiving authority is
immediately notified and the relevant particulars are transferred to its own child abuse
register. The register maintained by the respondent county council is, I understand,
in more or less standard form. It comprises a card index in which each victim's name
appears on a printed white card in which provision is made for particulars of parentage
and so on. Each white card also has printed on it a box headed with the legend 'Identity
of known/suspected Abuser(s)'. There is also a supplementary register in which any person
named on one of the white cards as a known or suspected abuser is allocated a blue card
giving his name and other particulars including a cross-reference to the victim.
The card index has the administrative advantage that when a registered victim or abuser
moves to the area of another authority the white or blue card (as the case may be) can
follow him and take its place in the equivalent index maintained by the receiving
authority. The council, in common with most other authorities, has published its own
pamphlet in a form approved by the DHSS and also by the Norfolk area review committee, the
body under whose delegated authority the council acts as custodian of the register. The
pamphlet is called 'Child Abuse' and is intended to give public guidance and information
about child abuse procedures in the county. It contains an assurance that the child abuse
register is kept at County Hall 'under conditions of strict security' and that its
contents will only be disclosed to 'designated personnel'. These include the police,
probation and education welfare services, and all general practitioners in Norfolk.
The inherent confidentiality of the register was strongly relied on by the council at this
hearing as a ground of immunity from judicial review, with the support of an affidavit by
the director of social services in which he deposed:
'No consequences flow from the mere fact that a name is entered in the Child Abuse
Register as that of an abuser unless and until access is sought to the Register by some
designated person having a proper interest in the management of the case concerned . . .'
The events relevant to the present case began on 25 November 1985 when a white card was
entered in the council's child abuse register in respect of a girl whom I will call 'K'.
She was born on 28 July 1973 and was therefore then 12. The card reports that she had
twice been the victim of sexual abuse perpetrated by two separate abusers, neither of whom
appears to have been a parent or custodian. The names of both of them were entered in the
box headed 'Identity of known/suspected abuser'. Nothing more is known about the abuse
then suffered by this child. It is not mentioned at all in the council's evidence, and
only came to light when production of the original registration documents was requested in
the course of the hearing. On Thursday, 4 June 1987 (shortly before her fourteenth
birthday) K arrived at school in a distressed state and told her teacher that a plumber
working at her parents' home had behaved indecently towards her. She was interviewed by
the police and by the social worker, Ms Norgrove, who had been her key worker at the time
of the earlier abuse. K's account was that on the morning of the previous Monday, 1
June, she had been in the living room in her nightdress putting on her make-up when the
plumber arrived. He had spoken to her in a familiar way and patted her bottom, saying how
pretty she was. When she returned to the living room after getting dressed he patted her
bottom again many times. She said she had told her mother about it later that day but had
simply been told to ignore the man. She then went on to give her account of the
events of the day of her complaint, Thursday, 4 June. She had woken in the morning, she
said,
to find the same man in the bedroom which she shared with her 12-year-old brother. He left
the room without saying anything, returned later while she was dressing (still in her
brother's presence) and again said nothing and left. When she had dressed, she went down
to the kitchen and found the plumber there. He put his arm round her, touched her breasts
through her jumper, and also touched her bottom. Shortly after that she had to pass the
toilet twice before leaving for school. On both occasions the toilet door was open with
the plumber inside, and each time he coughed to draw her attention. On the first occasion
she saw him standing sideways (so as to be visible to her in profile) with his fly buttons
open and his penis out. On the second occasion he laughed and waved his penis at her in
what was described by the reporting social worker (presumably paraphrasing the girl's
actual words) as a masturbatory gesture. She then left for school without saying anything
to her mother, who had been in the house throughout. On her way to school she had tried
unsuccessfully to make a telephone call to Ms Norgrove's office, and had made a complaint
to the teacher soon after she reached school. There had been a plumber working at K's
house on the mornings of both 1 and 4 June. I will call him 'M'. He is a married man aged
55, of good character. He was on the permanent maintenance staff of the district council
which owned K's house. His employers (whom it is unnecessary to name) are a local
authority entirely separate and distinct from the respondent county council. M was
arrested that same day, 4 June, and was in police custody for three and a half hours. He
did not dispute that he had been in the house on the mornings in question, but when K's
allegations were put to him he firmly and consistently denied that there was a word of
truth in them.
The council's social services department convened a case conference for 10 June 1987. It
was chaired by Mr Arthurton, a senior social worker. The others present were Ms Norgrove,
a chief detective inspector of police, a clinical assistant, K's school teacher and a
consultant child psychiatrist. Ms Norgrove reported K's complaint in the terms
already described. The inspector reported on M's denials and said that the police had
decided to take no further action for lack of evidence, a decision which he was persuaded
by others at the conference to hold in abeyance for the time being. The psychiatrist
expressed the view that both K and her mother might need psychiatric help or counselling.
It was agreed that a further case conference would be held on 13 July 1987. Mr Arthurton
himself then made the suggestion that he might in the mean time 'speak informally' (as he
expressed it) to M's employers. No one else present could see any impropriety in that
step. The six participants at the case conference then proceeded to record a number
of decisions of which it is material to quote two: '1. The conference was persuaded that
[M] had committed sexual abuse of [K] and both her name and his should therefore appear on
the register.' The second decision was numbered 4: 'Mr Arthurton to satisfy himself that
the Housing Manager [of M's employers] is aware of the situation regarding his employee.'
The first of those decisions is part of the subject matter of M's review
application and will be discussed later in this judgment. The other decision forms part of
a very disquieting background. It amounts to nothing less than a decision to inform on M
to his employers behind his
back. That shows up in a very poor light when placed beside the published assertions of
security in the council's own pamphlet, and it is worryingly at variance with the
assurances of confidentiality given in the affidavit sworn by the director of social
services. It should perhaps also be recorded that the fact that this unfortunate decision
had been taken at all did not come to light until a very late stage of this review hearing
when the case conference minutes were produced from the council's files at my own request.
The first decision was implemented on 26 June 1987, when K was allocated a further white
card (additional to the previous registered entry) on which M was named as her
'known/suspected abuser', and a blue card with a similar description was brought into
being for M himself. The first contact of any kind which M had with the council was
when he received a letter dated 26 June 1987. It was signed by a team leader in Mr
Arthurton's area office and marked as 'Strictly confidential'. It read in full as follows:
'Dear Mr. [M],
Following various alleged incidents on the 1 and 4 June 1987 with a girl called [K], a
case conference was persuaded that sexual abuse had taken place. As a result, your name
now appears on the Child Abuse Register, as an abuser. Yours sincerely . . .'
M was distressed by the letter and took it straight away to his employers to ask for their
advice as to what he should do to clear his good name. He was not, of course, to know that
Mr Arthurton had already made a secret approach to them. The council's further case
conference took place, as arranged, on 13 July 1987. There were four people present this
time: the psychiatrist, the police inspector, Ms Norgrove and Mr Arthurton. It was
reported by Ms Norgrove that a few days earlier (26 June) K had made yet another complaint
about sexual misconduct: a man in whose van she had accepted a ride had made, she said,
'rude suggestions' to her. K's teacher had described her to Ms Norgrove as being unsettled
at school, where she appeared inappropriately dressed in tight jeans and high heels. Ms
Norgrove herself described K as leading an unsettled home life between her mother and
other relatives or friends: 'flitting around from living base to another', was her
description. The case conference then proceeded to record decisions that K and her
mother should both be referred for counselling, and that no further police action against
M should be taken. Mr Arthurton was directed nevertheless 'to have further contact with
the abuser's employer'. M was told by the police on 15 July 1987 that no further
action would be taken against him. His relief was short-lived, however, because on 27 July
he received a letter from his employers summoning him to an inquiry instituted under their
internal disciplinary procedure on the ground that his name had been recorded in the
council's register as an abuser, following allegations made by a young girl in a property
where he was working he was supended on full pay in the mean time. I have already
mentioned that the disciplinary hearing has been held over to await the outcome of this
case, and M has been temporarily reinstated subject to a condition that he does not work
in occupied premises without a companion. M instructed solicitors, who wrote to the
director of social services protesting against the registration and the manner in which it
had been effected, and requiring his name to be removed. That was refused, but he was
offered the opportunity of attending, with or without representation, at a reconvened case
conference at which he would be allowed to 'make his observations personally'. That was an
offer to attend in person before a body which had already condemned him in his absence. He
refused it, and in my view had every justification for doing so, in the light both of what
he then knew and of what he has since learnt. That completes the account of the
background to this application. Before turning to the principles of law involved, it seems
to me appropriate to look generally at the procedures adopted by the council leading up to
M's registration as an abuser, in order to see how far they accorded with good sense,
fairness and sound social work practice. From that standpoint, their procedures are, in my
view, open to criticism in three significant respects. The first relates to the
worrying circumstances of the child with whom they were dealing. K had already been
registered as a child twice abused before the involvement of M. She was dressing and
behaving precociously and was leading an unsettled home life. Within a few days after her
accusations against M she was reported as having complained of improper advances by yet
another man. It is, of course, distressingly common for abused children to become
vulnerable to further abuse because their past sufferings have made them sexually
precocious or flirtatious. It is also by no means unusual, however, for a child, when once
abused, to imagine or allege acts of further abuse supposedly perpetrated by people who
are demonstrably innocent. (One of the well-known hazards, for example, of fostering
abused children is that the child may come up with unfounded allegations of abuse against
the new carers.) It is a particularly troubling feature of the present case that the
possibility does not appear even to have occurred to either case conference, or for that
matter to any level of the council's social services, that K's accusations might be a
fantasy or fabrication proceeding directly from her own very evident emotional problems,
and that, if there was the least possibility that such might be the case, they were at
risk of stigmatising an innocent man as an abuser. That is a risk to which their minds
could, of course, have been immediately opened if M and his
professional advisers had been allowed, before the registration was effected, an
opportunity of informed comment on the material considered by the two case conferences.
The second criticism relates to the form in which the first case conference
expressed the primary decision. Social workers are trained to forbear from passing
judgments indeed it is through their use of it that the ungainly word 'non-judgmental' has
found its way into the English language. It is surprising, therefore, that the case
conference should have thought it right or necessary to record a solemn finding of guilt
against M after a brief and one-sided investigation. It would surely have been sufficient
for the conference to have recorded simply that on the material at present available there
appeared to be sufficient evidence to justify registering the name of M as K's suspected
abuser. The third criticism is closely related to that. The council adopted what
appears to me to have been a dangerously slipshod approach to the formula 'identity of
known/suspected abuser(s)' printed on both the blue and the white card. When this formula
was first approved (as it must once presumably have been) by the DHSS, it must surely have
been the intention that the registering authority should delete one description or the
other and not leave both 'known' and 'suspected' to stand. A known abuser, one would
think, would be a person who had been found guilty by a civil or criminal court or who had
made a full confession a suspected abuser would be someone in relation to whom the
evidence, though as yet untested in court proceedings, appeared sufficiently persuasive to
justify treating the alleged perpetrator as a potential threat to the registered child or
to other children. The distinction between the two is not drawn in either of the
registrations affecting K, which prompts the suspicion that it may have been omitted for
other children on the council's register as well.
When the flawed proceedings of the case conference are set alongside the council's
unworthy decision to put secret pressure on M's employers, the overall picture becomes
very disturbing. The courts are always slow to censure local authorities in cases of this
kind, because judges are aware of the difficulties (including resource problems) with
which social workers have to contend. Nevertheless, the circumstances of the present case
are exceptional and extreme. M is entitled to a finding, which I make regretfully, that
the council's conduct towards him was obtuse, unfeeling and unfair. Its counsel
understandably preferred to concentrate the council's resistence to judicial review on
pure grounds of law. His first submission was a courageous one. Neither the case
conference decision nor the consequent registration of M as an abuser were acts capable of
being reviewed judicially. They were, he claimed, purely clerical or ministerial acts,
internal to the council's own administrative procedures and simply part and parcel of the
general corpus of its casework notes and other confidential files and records. M's rights
and obligations in private law
were, he claimed, unaffected by his registration as an abuser, and the registration has
not deprived him of any benefit or advantage which the council had in the past permitted
him to enjoy: see Council of Civil Services Unions v Minister for the Civil Service [1984]
3 All ER 935 at 949, [1985] AC 374 at 408 per Lord Diplock. I have been wholly
unable to accept that argument. The section of the public entitled to access to the
register is certainly limited, but it is a significant section and it includes people with
powers of choice and decision capable of working to M's disadvantage. In the days when his
name was not on any register of child abusers he enjoyed the advantage of being able to
compete on equal terms with others for employment in the educational or social services or
for positions of trust such as a child-minder or foster or adoptive parent. By registering
his name as an abuser on a register to which all potential employers or selectors within
any of those fields would have access, the council have deprived him of
that advantage. The absolute confidentiality of a child abuse register cannot, moreover,
be entirely guaranteed and the advantage of a good name, which M enjoyed before
registration, is now in daily jeopardy through the risk that inquisitive minds or wagging
tongues may breach the security of the register. It is proper, in my judgment, to
take into account also the fact that before the registration M enjoyed peace of mind and a
contented home life. Now he is in a state of permanent distress which at times has
affected his health, and his wife too has been very upset. I am satisfied, for all these
reasons, that it is not the law that local authorities are free to exercise arbitrary
control over the entry of names of alleged abusers on a child abuse register with total
immunity from supervision by the courts. Any such immunity would seriously erode the
rights of the citizen. Counsel's second submission was founded on the premise, which
is undoubtedly correct, that the council's decision cannot (in the absence of bad faith or
excess of jurisdiction, neither of which is relied on by counsel for M) be reviewed in the
courts except on the basis of breach of
natural justice or unreasonableness within the limited sense of that term approved in
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1
KB 223. Under the head of natural justice, counsel contends that in deciding to
register M as an abuser the council was not acting judicially, or even quasi judicially,
but administratively, and was accordingly exempt from any requirement to apply the natural
justice rules to its case conference proceedings. I accept that a case conference
deliberating whether or not to place a name on the register as an abuser is not acting
judicially so as to make the rules of natural justice automatically applicable to its
procedures as though it had been functioning as a tribunal. Nevertheless, the consequences
of registration for M were in my judgment sufficiently serious (for the reasons I have
already stated) to impose on the council a legal duty to act fairly towards him. The
council's case conference acted unfairly and in manifest breach of that duty when it
operated a
procedure which denied him all opportunity of advance warning of its intention, or of
prior consultation, or of being heard to object, or of knowing the full circumstances
surrounding its decision. As to unreasonableness, counsel contends that the onus is
on M to show that the council's conduct in relation to the registration was irrational to
an extent verging on the absurd, and that all the criticism that may fairly be made of his
client does not add up to unreasonableness in that restricted sense. I do not agree with
that submission in its result. The council's behaviour towards M offended not only the
most basic notions of fair play but was also so unreasonable as in my judgment to come
well within the Wednesbury principle. Certiorari will therefore lie to quash the
case conference decision of 10 July 1987 so far as it purported to describe M as the
abuser of K and also to quash the entries on the council's child abuse register so far as
they purport to identify him as the known or suspected abuser of K. I have referred
to this as an anxious case. It is also in many ways an instructive one, and it may
therefore be worth mentioning the lessons which I believe should be drawn from it.
Any system of registration designed to enable the names of known or suspected
abusers of children to be brought rapidly and with the minimum of inquiry to the attention
of the various agencies with responsibilities towards children, in any part of the country
in which the victim or the alleged perpetrator happen to be living at any one time, is
bound to have great potential as an instrument for the relief and prevention of suffering.
A child abuse register nevertheless remains (at all events as regards the abusers named on
it) in essence a blacklist, and as such it also has dangerous potential as an instrument
of injustice or oppression. Social workers are not by nature either unjust or
oppressive they work selflessly for the support of those least able to help themselves.
For them the risk of oppression lies, rather, in being drawn by enthusiasm into the
single-minded pursuit of one good objective to the total exclusion of all others. Child
abuse is an undoubted, and disturbingly prevalent, social evil much criminal behaviour,
drug and alcohol addiction, mental stress or illness in adults can be traced directly back
to it. Such abuse is often concealed by fear and social taboos, giving it something in
common with the social evil of witchcraft which was an affliction to earlier and more
credulous generations. Considerable headway has been made in overcoming these
inhibitions, and in promoting the detection and treatment of child abuse generally,
through the use of simple maxims which everyone can understand, like 'A child has the
right to be believed'. Such expressions are dangerously emotive however, and if they were
to be applied mindlessly by the over-zealous or ruthlessly by the undertrained, there
would be a real risk of injustice to adults suspected of abuse through an unquestioning
acceptance of the complaints of their young accusers. That is a risk too chillingly
reminiscent of seventeenth century Salem to be tolerated in a free society, and the
interventionary powers of the High Court are the only means of keeping it at bay.
It has to be remembered, all the same, that Parliament has entrusted virtual autonomy to
local authorities in the discharge of their statutory duties of child care, and the powers
of judicial intervention have to be made to fit into that framework. I have held that it
is the duty of a case conference (or other agency of local government) exercising a
discretion whether or not to enter the name of an alleged abuser on the child abuse
register to act fairly. Fairness is, and needs to be, a flexible concept, and
circumstances are liable to vary widely as to the degree of advance notice or opportunity
of objection or consultation which attention to fairness in particular cases requires.
Thus cases involving a parent or other custodian may require very different treatment from
those involving a stranger and cases where there has been a civil or criminal finding or a
confession may need to be treated differently from those that rest on suspicion alone. The
choice of a fair procedure for any particular set of circumstances is a topic on which
reasonable opinions may properly vary, and social workers ought to be allowed sensible
latitude when deciding how the requirements of fairness are best to be satisfied in each
case. Such a decision will involve for them a weighing exercise, requiring them to balance
their duty of fairness to the suspected abuser against their statutory duty to act as
effectively as possible for the protection of children from injury or abuse. There will be
many cases in which that will not be found an easy task, and the balance will turn out to
be a very fine one.
It is not the function of the courts, vigilant though they will always be to restrain an
oppressive use of these registers, to substitute their own view how such a balance is to
be resolved for that of the informed and specialist authorities who have been charged by
statute with the duty of resolving it. If, therefore, it can be demonstrated in future
cases that the particular procedure or range of inquiry followed by a local authority in
the course of registering the name of an alleged abuser has represented a genuine attempt,
reasonable in all the circumstances, to reconcile the duty of child protection on the one
hand and the duty of fairness to the alleged abuser on the other, it is unlikely that the
courts will intervene through judicial review to strike the registration down.
Meanwhile, the immediate and urgent concern must be to ensure that the duty to act
fairly towards alleged or suspected abusers becomes sufficiently well known and understood
for it to take a prominent place in the minds of the social workers who have to deal with
these anxious and distressing cases. I trust that the unfortunate experiences of the
present case will act as a spur to those who have the power and the authority to see that
this is done.
DISPOSITION:
Certiorari granted.
SOLICITORS:
Cole & Co, Norwich (for M); T D W Molander, Norwich (for the council).