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FAMILY PROCEEDINGS: A v Payne and Williams; A v G and N [2009] EWHC 736 (Fam)

Date:21 APR 2009

(Family Division; Sir Mark Potter P; 8 April 2009)

Following protracted court proceedings in relation to the child, a detailed and comprehensive consent order was made. Among other things, the consent order stipulated the attendance of both parents at therapy and parenting classes, as proposed by the guardian. In order to progress this without further delay, the guardian, having taken advice from the child's solicitor, sent copies of four expert reports filed in the case to the therapy centre, with the aim of giving the therapist an understanding of the difficult background to the case. The guardian did not obtain the court's approval for this move, or the consent of the parents, but acted in the belief that disclosure for this purpose was nonetheless lawful. The father served the child's solicitor with an application for the committal of both the solicitor and the guardian for contempt, immediate return of the reports, and the removal of both the solicitor and the guardian, in whom, he said, he had lost confidence.

The contempt had been established. The solicitor and guardian had failed to understand the effect of the Family Proceedings Rules, r 10.20A, which permitted disclosure of information relating to family proceedings without the court's permission only in certain specified circumstances. In this case the reports had not been communicated to a health care professional for health care or counselling purposes, because the disclosure had been by the guardian, acting on the child's behalf, for the purpose not of health care or counselling for either the child or the guardian, but of counselling for the parents. Equally, disclosure had not been to a mediator, who must, under r 10.20A, be an appropriately qualified family mediator, but rather to a therapist. However, given that no ill motive had been established, it would not be appropriate or constructive to impose any penalty in respect of the contempt. The reports were to be returned by the therapy centre. Neither the guardian nor the child's solicitor was to be replaced. Such removal would not be in the child's best interests, not least because it would cause delay. In many cases involving children one of the parties was critical of the guardian's views, and expressed themselves as having lost confidence in the guardian. If that frequently encountered situation were sufficient to justify replacement of the guardian in every case in which such loss of confidence was asserted, the progress of such cases would become yet further extended and the work of Cafcass impossible to organise.