Charity wins appeal over Government refusal to disclose analysis carried out by Child Safeguarding Practice Review Panel

A group that campaigns for the welfare of children in institutional settings has won an appeal that will require the Department for Education (DfE) to release analysis of incidents where children became looked after as a result of abuse or neglect.

The DfE had refused to release the material and the Information Commissioner agreed with this, but the First-Tier Tribunal General Regulatory Chamber (Information Rights) agreed with Article 39, which had submitted the freedom of information request, that disclosure should take place.

Tribunal Judge Stephen Roper, who sat with members Aimée Gasston and Paul Taylor, said in his judgment that disclosure would not adversely affect the relationship between the DfE and the Child Safeguarding Practice Review Panel, which had analysed the 48 cases concerned. A summary of key findings from this analysis was reported in the Panel's annual report 2020 (page 24), published in May 2021.

The DfE response - which the tribunal noted was late - claimed the requested information was exempt under s36(2)(c) of the Freedom of Information Act in the opinion of minister Will Quince.

An internal DfE review upheld that and Article 39 turned to the commissioner, who decided s36(2)(c) was engaged concerning prejudice to effective conduct of public affairs.

Article 39 then appealed to the tribunal, arguing that incidents referred to in the report were sent to the panel by local authorities in accordance with statutory child safeguarding guidance and while the DfE had stated that the report had been provided “in strictest confidence”, the panel only existed to promote learning and improvements in child protection.

Publication would therefore be consistent with both the panel’s function and with the obligations of the DfE on child safeguarding policy, it said.

Article 39 noted it was common practice for reports to be published which contain highly sensitive information about children but with redactions, and the DfE had not offered this route.

Judge Roper said: “First, we do not accept that disclosure of the report would be likely to have the effect claimed (namely, that it would be likely to damage trust and the working relationship between the DfE and the panel or be likely to result in the panel being less willing to share information with the DfE in the future).”

This was because there was no evidence that the panel's working relationship with the DfE would be likely to be adversely affected and the tribunal felt the report “does not contain any material which of itself would damage any such relationship”.

Judge Roper added: “We also agree with the appellant's arguments to the effect that it is unlikely that the panel would retreat from sharing relevant child protection information with the DfE in future, simply because of disclosure of the report, especially given that the panel's existence and purpose relates to the advancement of child protection.”

The tribunal expected “at least a basic understanding by all civil servants of the fact that all information held by a public authority is potentially subject to disclosure in response to a freedom of information request” and added no evidence before it suggested that any children might be identified following publication.

The FTT concluded that the balance came down in favour of disclosure of the relevant report.

“We would note that, even if we had concluded that the scales were evenly balanced, then the outcome would be that the Report should be disclosed in any event (reflecting the position outlined in the Department of Health case we cited at paragraph 47). However, in our view this is not an evenly-balanced matter but rather there is a strong public interest in disclosure which outweighs the public interest in maintaining the exemption.”

It ordered the DfE to disclose the withheld information within 30 days of notification of the tribunal’s decision.

Mark Smulian