The mediator and suspicions of harm to a child


‘Sharing’ of information about a mature child


There is a poor alignment between what the law explained by House of Lords says to doctors and others on confidentiality for mature children – children of ‘age and understanding’: per Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – and what government guidance (eg Working Together 2015) says, especially to local authority staff (social workers, teachers etc). The law as explained by House of Lords in Gillick is still good law; and it trumps the guidance. If that is right then some of the guidance is wrong.


As an example, imagine that a child Angela, aged 15, tells her teacher Mrs Josselin (J) of things that are going on at home. She talks of excessive chastisement and other punishment that her step-father Steven Martin (M) has inflicted on her. The teacher listens, says little; but makes full notes of what she has been told immediately after Angela has spoken to her. Angela asks her teacher to tell no one; and especially to say nothing to her mother or M.


J speaks to her head-teacher. They feel they are bound by the guidance in Working Together 2018, and its stress on ‘sharing information’ (by which it means passing on information) such as:


‘24. Practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks or concerns about the safety and welfare of children, whether this is when problems are first emerging, or where a child is already known to local authority children’s social care (e.g. they are being supported as a child in need or have a child protection plan). Practitioners should be alert to sharing important information about any adults with whom that child has contact, which may impact the child’s safety or welfare.’


The school has had a number of concerns about Angela over the previous 18 months before. The head tells a social worker, and the social worker tells the police. The local authority looks into what has happened. Angela refuses to be interviewed further about what she told J; but J’s notes are passed to the local authority. No-one tells the parents what Angela has told the teacher and which sparked off the most recent enquiry.


Care proceedings follow; and the question of how Angela’s information in J’s notes is to be disclosed to the court, will be an issue – as, on that subject, will be the conflict in the law between the confidence in the information between Angela and the teacher. These questions are for another day.


Mediation and Angela: code of practice


Suppose the same information from Angela was passed on to a mediator, Jim Dixon (D). What are the mediator’s duties: (1) under any guidance or code of practice; and (2) in law (if different)? A mediator’s code of practice, from the Family Mediation Council (Code of Practice for Family Mediators May 2018) includes the following in relation to children:


‘5.2.2 Where it appears necessary so that a specific allegation that a child has suffered significant harm may be properly investigated, or where the Mediator suspects that a child is suffering or is likely to suffer significant harm, the Mediator must ensure that the appropriate agency or authority is notified. Wherever possible, the Mediator should make such a notification after consultation with his or her PPC.’


What follows deals only with children of age and understanding (Gillick-competent). For them and their confidentiality (or European Convention 1950 Art 8 rights to respect for their private life) para 5.2.2 comes in a passage headed ‘Confidentiality’. Uncontroversially, the previous paragraph (5.2.1) says (subject to 5.2.2):


‘… The Mediator must not disclose any information about, or obtained in the course of an Information and Assessment Meeting or during a mediation process to the other participant or to anyone including a court appointed officer or the court, without the express consent of each Participant, an order of the court or where the law imposes an overriding obligation of disclosure on Mediators to do so.’


The mediation process is entirely confidential, and only the parties (including any child) can waive confidentiality (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J). Unlike legal professional privilege, confidentiality can be overridden if a higher interest demands (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] UKHL 6, [1987] WLR 776, (Spycatcher case) per Lord Goff at 281).


Law and the Gillick-competent child


So what says the law (as opposed to guidance or practice codes) about the position of the mediator. The starting point for advice for D (the mediator) is that for a girl of her age – in the absence of mental incapacity (see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, Cobb J) – she is entitled to have her confidentiality respected (Gillick (above)). Gillick, after all, was specifically about confidentiality (a doctor’s position in relation to confidences, as to which, for modern guidance to doctors, see GMC Guidance on confidentiality ). What is said by House of Lords is a higher version of the law than government guidance.


The ‘guidance’ in Working Together 2018, is a lesser version of the law than Gillick. To the extent that it, and the mediation guide, promotes ‘sharing’ where a mature child’s confidences should be respected it is, surely, wrong?