Last month, there was a fair bit of media interest around a High Court battle before Mrs Justice Knowles involving a senior social worker who had been found by the family court to have perpetrated domestic abuse towards his ex-partner. HHJ Ahmed, the judge who had made those findings, refused to provide a copy of his ruling to Social Work England (‘SWE’), the man’s regulator. That decision was the subject of the appeal before Mrs Justice Knowles.
Mrs Justice Knowles’ decision has now been published: Re Z (Disclosure to Social Work England: Findings of Domestic Abuse)  EWHC 447 (Fam). Perhaps unsurprisingly, she allowed the appeal against HHJ Ahmed’s decision, concluding that the fact-finding hearing judgment which contained the findings of domestic abuse should be disclosed to SWE.
The father in these proceedings (who I’m going to refer to as ‘F’) is a senior social worker working with vulnerable adults. He and the mother (who I’m going to call ‘M’) were in a relationship for 4 years. Private law children proceedings commenced in late 2019 in respect of their child, referred to as ‘Z’ in the judgment.
At a fact-finding hearing in February 2022, a number of very serious findings were made against F (a reminder that in the family courts, the standard of proof is lower than in the criminal courts – we use ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’). Those findings were:
- F physically assaulted M in August 2019 and fractured her right hand, causing lasting disability;
- F used his temper to frighten and control M;
- F was verbally abusive to M, including being so in front of Z and his other child (now adult);
- F behaved in a way which was emotionally abusive of the children;
- F behaved in a way that amounted to gaslighting, control, and denigration of M;
- F humiliated M about her disability (the exact details are redacted, probably to prevent the family from being identified);
- F hit the family dog in front of Z who was upset by it; and
- F threatened M with the police, solicitors and courts to intimidate her.
A few months later, Social Work England made a decision to open an investigation into F’s fitness to practice. They applied to the family court for a transcript of the fact-finding judgment, an application which was opposed by F and supported by M. HHJ Ahmed determined the application without an oral hearing due to there not being enough court time and decided that he would not provide his fact-finding judgment to SWE. Importantly, at no point did the judge ask SWE to make submissions on the issue.
Looking at the extracts from HHJ Ahmed’s first-instance judgment which Mrs Justice Knowles refers to in her own judgment, it seems that he was concerned about the impact of F losing his job on Z, such as his ability to provide financial support to her; the need to maintain the child’s confidentiality; and the need to encourage frankness in children cases (HHJ Ahmed noting that F’s frankness in parts of his evidence was helpful to the court). HHJ Ahmed ultimately felt that SWE could conclude its investigation without having the fact-finding judgment.
Mrs Justice Knowles outlined the core principles at play here. Children Act proceedings are heard in private. Disclosure of information relating to those proceedings could amount to a contempt of court. The court has the power to permit disclosure of that information pursuant to rule 12.73 of the Family Procedure Rules 2010, which sets out three circumstances in which information from private family law proceedings can be disclosed. Only one of those is engaged in this case: rule 12.73(1)(b), namely where the court gives permission for that information to be disclosed.
The leading authority on the court’s discretion to permit disclosure pursuant to rule 12.73(1)(b) is in a case called Re C (A Minor) (Care Proceedings: Disclosure)  Fam 76, where Swinton Thomas LJ identified 10 factors which are likely to be relevant when determining an application for disclosure to the police:
In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case.
- The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
- The welfare and interests of other children generally.
- The maintenance of confidentiality in children’s cases.
- The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of section 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.
- The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another inimical to the overall interests of justice.
- The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
- The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
- The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools etc. This is particularly important in cases concerning children.
- In a case to which section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
- Any other material disclosure which has already taken place
At paras. 23 to 33 of the judgment, Mrs Justice Knowles tracks the treatment of Re C in subsequent case law and concludes that the question of disclosure requires “the evaluative exercise set out in Re C, applied to the variable circumstances of the case at hand, recognising that there is no presumption in favour of disclosure”.
M appealed (supported by SWE) on two grounds: firstly, that the judge failed to conduct the balancing exercise correctly and secondly, that the judge was wrong to find that SWE could conduct its own investigation. Mrs Justice Knowles allowed the appeal on both grounds.
As far as ground one was concerned, Mrs Justice Knowles felt that the judge fell into error by not inviting submissions from SWE. She concluded that while the judge applied the Re C factors he thought were relevant, he didn’t explain why he regarded the public interest in disclosure or the desirability of co-operation with agencies concerned with the welfare of vulnerable people irrelevant. In effect, he simply stated that the harm to Z outweighed the public interest in disclosure, without explaining why.
As for ground two, Mrs Justice Knowles said that while SWE could continue their investigation, they would be dependent on F being honest about the findings in circumstances where if he were to do so, this would have enormous implications for his career. Both parents would have also run the risk of being in contempt of court if they revealed information to SWE without the court’s permission, and revealing information in this way would also leave the Z’s confidentiality unprotected and subject to SWE’s processes rather than the oversight of the family court.
Mrs Justice Knowles didn’t think that remitting the issue back to the family court would be helpful given the delay this would cause so she re-makes the decision herself. She concludes that the balance tips in favour of the fact-finding judgment being provided to SWE. The key factors she refers to when conducting the Re C balancing exercise are as follows:
- The child’s welfare may be affected if her father couldn’t work as a social worker, but it wouldn’t be such as to “imperil the roof over Z’s head or the continuity of her education.”
- It is not a foregone conclusion that F will never work as a social worker again, and F has a wealth of experience which might help him obtain other paid work.
- The court has the power to control the manner in which disclosure takes place so as to protect the child’s confidential information.
- It is important to encourage frankness in children proceedings but this does not necessarily tip the balance towards refusing disclosure in a private law case. F also has an obligation to be frank about his conduct to SWE. “Frankness cuts both ways” in this case.
- Barriers should not be erected between one branch of the judicature (SWE) and another (the family court).
- It is desirable for agencies concerned with the welfare of vulnerable people (such as the family court and SWE) to cooperate.
- The findings were of very serious abusive behaviour not only towards M but also towards the child. The court’s findings were directly relevant to the Code of Conduct for social workers which requires that a social worker not engage in abuse, violence or harm to anyone.
- F said he had already been frank with SWE about the findings so a limited degree of information had already been shared despite the court not granting permission.
She ultimately concludes that the need for public safety outweighs the F’s right to respect for his privacy.
Guidance on disclosure to a regulatory body
Mrs Justice Knowles concludes her judgment with some helpful guidance for judges on what to do when faced with an application for disclosure to a regulatory body.
In the interest of assisting judges faced with these comparatively rare applications, I suggest that:
- where a party to family proceedings works with vulnerable people or children and where a court has made findings of fact which may engage or call into question that party’s fitness to perform their role, the court should consider whether its findings and judgment should be disclosed to the relevant regulatory body pursuant to rule 12.73(1)(b) of the FPR 2010;
- it is desirable that the court takes responsibility for considering any onward disclosure in order to prevent the need for a victim of any abuse (who, by reason of PD3AA, is a vulnerable party) having to draw the matter to the court’s attention;
- the court should first invite the parties to confirm their positions with respect to disclosure in these circumstances;
- if disclosure is opposed, the court should consider inviting the relevant regulatory body to intervene and disclose to it such limited information as may assist that body in deciding whether it seeks disclosure for any regulatory purpose;
- preferably, the issue should be considered at an attended hearing with the regulatory body present; and
- in the event that disclosure is refused, the court must send its disclosure judgment promptly to the regulatory body.
Mrs Justice Knowles did consider if there should be disclosure to F’s employer but ultimately decided against it. Disclosure to a regulatory body would trigger a process where the court can be confident that the disclosure would be safeguarded; those protections are unlikely to be replicated for every employer. Disclosure to the regulator, in any event, would likely result in the employer being notified as part of the process.
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