Met Police ordered to pay foster carers compensation over disclosure of address in family court case

In FXH & BXH v. Commissioner of Police (County Court at Central London), His Honour Judge Holmes found that although he was “not persuaded, on the balance of probabilities”, that the claimants had established that the documents were seen by the birth mother, they did, however, establish that they had an “objectively well-founded fear” that the information had been passed on to her.

The claimants (FXH and BXH), who had fostered children for 12 years, had been caring for siblings, A and B, since 2019.

When the children disclosed sexual abuse by an older brother in February 2020, the claimants passed the information on to the fostering agency and it was in turn given to the relevant local authority.

This started investigations which led to proceedings being commenced or continued in the Family Court in relation to A and B.

In 2020, the Metropolitan Police disclosed – using the BOX system – a bundle of documents to the local authority for use in the family court case. Among them was a document containing the foster carers’ full home address.

The local authority passed those documents on to the birth parents’ solicitors who in turn passed them to the birth parents. Whether the birth parents read the documents was a matter of dispute, according to the judge.

HHJ Holmes noted that the Commissioner of Police for the Metropolis (The Defendant) “did not become aware of this onward transmission” until late May.

Meanwhile, another child, a twelve-year-old girl, L, was placed with the claimants in March.

In April, L accused BXH of pinching her bottom whilst they were playing a game. L was immediately removed from the claimants, and A and B were removed later that evening. The Family Court subsequently exonerated BXH of any wrongdoing in relation to the children.

At a looked after child review a month or two later, the birth mother made a threat against BXH. It was subsequently recorded by the police in these terms: “[Birth mother] said [BXH] put his hands down [A’s knickers] and she knows where he lives and is going to go round and kill him.”

When the birth mother was asked if that was a threat, she replied that “she was making a promise”. A police report suggested it was conditional.

In early June, a police constable spoke to FXH and informed her of the threat that had been made against BXH.

The judge said: “FXH says that the call was very vague. FXH was not told about the comment from the birth mother that the threat was a promise. FXH was not told of the data breach, so was unaware that the birth mother knew, or might know of, their address. FXH says that she was not told that the threat had included the words that the birth mother knew where they lived.”

When told of the threat to kill, as far as the claimants were concerned, the birth mother did not know where they lived and they “viewed the threat in that context”, the judge noted. FXH described not being overly concerned by the call.

However, matters changed two days later when a detective constable called FXH.

In the call, the detective constable informed FXH that the claimants’ address had been included within documents sent to the local authority and that the information had been in the possession of the birth family, including the birth mother.

The County Court heard conflicting evidence about whether the detective constable offered to move the family into a “safe house”.

HHJ Holmes accepted that the officer used the phrase and that the carers reasonably believed the police were suggesting immediate relocation to a secure property – giving them “a view as to the seriousness of the situation”.

FXH said in a statement that for about 18 months after the data breach, she and BXH were in a state of “constant vigilance and anxiety”.

The Particulars of Claim asserted three heads of claim:

1. The tort of misuse of private information.
2. A self-standing action for breach of confidence.
3. A claim based on liability under the UK General Data Protection Regulations (UKGDPR) and the Data Protection Act 2018 (DPA).

HHJ Holmes found that the police force was in breach of its data protection obligations. “The Commissioner cannot absolve himself of responsibility because the data passed through the local authority. The fear of misuse of the information was well-founded and as a result the Claimants are entitled to recover damages.”

On misuse of information, the judge concluded that there was a reasonable expectation of privacy in this case in respect of the Claimants’ address “and no countervailing reason for making the information public”.

In terms of the second head of claim, HHJ Holmes said the Claimants had a reasonable expectation of confidentiality in the material.

The judge said: “The Claimants were foster carers…. that is a position which exposes the Claimants to a risk that a birth family may seek to cause difficulties.”

The Claimants’ belief in the birth family’s involvement in criminality appeared to the judge also to be well-founded given what they had been told of them. “However, even absent established criminality, the need for a foster carer’s address to remain confidential is clear and obvious.”

HHJ Holmes said: “Many birth families would no doubt never dream of causing difficulty for those who look after their children during times of trouble, but it is not difficult to foresee circumstances in which some birth families might see things differently.”

The judge added: “Given the established confidentiality in the material the police had an obligation to maintain that confidence. For reasons already given I do not see that the passing of the information through the local authority to the birth family absolves the Commissioner of his liability. It was the actions of the police that put in train the breach of confidence.”

The court awarded compensation of £15,000 to FXH and £18,500 to BXH.

The claimants also sought a range of special damages, of which the following were allowed:

• £1,200 for recommended psychological treatment for BXH.
• £1,414.80 for installation of a household alarm system.
• £3,678.94 for the cost of replacing their car, which the court accepted had been done for safety reasons linked to the breach.

Concluding the case, His Honor Judge Holmes said: “It is impossible to say what the award would have been had there been no psychiatric injury because it would depend on the level of distress which had been caused.

“It is important to remember that this is a single inadvertent disclosure of information not, for example, long term and intrusive phone-hacking. It is also important to remember that I was not satisfied on the evidence that the birth mother had actually read the documents which contained the address.”

Lorna Skinner KC of Maxtrix Chambers appeared for the claimants, instructed by Slater & Gordon.

Lottie Winson