News Professional Discipline 27th Mar 2023

Disclosure: when will the Family Court disclose its findings to a regulator? Re Z (Disclosure to Social Work England [2023] EWHC 447 (Fam)

Z’s father was a senior social worker who was working with vulnerable adults. After it came to light that he had broken the mother’s hand causing permanent disability, verbally abused her in front of Z, and generally behaved in a threatening and coercive manner towards her, Social Work England started an investigation. As part of that they applied for disclosure of the judgment from the Family Court fact-finding hearing which concluded that these events had happened. The application was refused and the mother appealed.

The Family Court is understandably, or notoriously depending on your perspective, guarded about what information it will release. Hearings are mostly not open to the public, and while accredited journalists can attend they do so under significant restrictions. This is both to protect the confidentiality of the parties or children involved, and to promote frankness from the parties who can generally be reassured that any concessions made will not be used against them elsewhere.

However, the assurance that admissions (or findings) in the Family Court will go no further is not categorical. The court retains a discretion to disclose information from family proceedings and the leading case of Re C (A Minor) … [1997] Fam 76 laid out 10 factors to be considered. These include the interests of the child or children generally, confidentiality (although it was acknowledged that the weight given to this has reduced over the last few years), the need to encourage frankness, the need not to have barriers between parts of the judicial system, and the gravity of the conduct (Re C related to disclosure to police but the principles apply equally to professional regulators). There is also a general test that it must be “necessary and proportionate” to make the disclosure.

Although the original application for disclosure had been made by SWE it was the mother who appealed against the refusal on the grounds that the judge had failed to balance the public interest in SWE being able to assess the risk posed by the father, and had wrongly concluded that SWE could do the investigation without the disclosure. Mrs Justice Knowles allowed the appeal and remade the decision, ordering disclosure.

She found that the Judge had failed to consider adequately the public interest in disclosure, and in not having barriers between the various agencies (including the court) concerned with the welfare of vulnerable people. He had given too much weight to the suggested adverse financial effects on Z if the father lost his job, and the child then lost the father’s financial support. He should also have invited submissions from SWE before making the decision. They might have reminded him, among other things, of confidentiality safeguards which could have been put in place.

The Judge was also wrong to think that SWE could conduct its own investigation without the Court’s findings. Mrs Justice Knowles held that, without the judgment, SWE would be entirely dependent on the father honestly describing the Family Court’s findings, or would have to ask the mother about them, which would put both potentially in contempt of court. The judgment does not consider the possibility that SWE could have called the mother (and other evidence) and made findings of fact itself directly from the evidence.

In remaking the decision Knowles J decided that the financial prejudice to Z would not be that great. She also emphasised the similarities between children and vulnerable adults when judging how concerning the father’s behaviour was.

Importantly Knowles J made clear that when the factor of avoiding barriers between one branch of the judicature and another is being considered, statutory regulators who have rules protecting the right to a fair trial, and processes that can protect confidentiality, should be afforded respect by the Family Court. She points out that part of the job of the Family Court is to protect the vulnerable, and SWE has similar objectives.

Knowles J also set out some observations to help judges facing these rare applications. She suggested that where a party to the family proceedings works with vulnerable adults or children, the court should take responsibility for considering whether to disclose its findings to the regulator. The regulator should be invited to be part of this process.

However, the Judge came down against disclosure to an employer, because they may lack the protections to ensure fairness to the accused, and to preserve the confidentiality of the material.

It is possible that defence practitioners will start to see more applications by regulators for disclosure of the findings in the Family Court following this judgement. The case provides the framework for opposing such an application, if appropriate, and gives clear guidance on what factors should be considered.

An interesting situation might arise if the Family Court found against the alleged victim, who then chose to repeat the (unfounded) allegations before the regulator. Given the judge’s views on employers, disclosure would not be made to a registrant, but the defence team could presumably ask for the regulator to make the application which would provide the Court with the safeguards needed.


Ben Rich


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