The Guardian newspaper reported the decision in Re X (Disclosure to Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 (Fam) with the headline, “social worker who abused ex-partner loses fight to keep details from regulator”. Reading that one might instinctively think, “well, of course he lost”. For my part, when I read beyond the Guardian’s journalism and into Knowles J’s 67 paragraph judgment in this matter, I may also have thought “well, of course he lost”.


The Facts

This appeal arose out of long-running private law proceedings between the mother and father of a 10 year old girl, Z. In early 2022, HHJ Ahmed conducted a fact-finding hearing to determine allegations of domestic abuse made by Z’s mother against the father. These included causing permanent damage to the mother’s hand, and being verbally abusive in front of Z. The judge made findings of domestic abuse against the father. 

Z’s father was a social worker, described in the judgement as a senior social worker working with vulnerable adults. One can immediately see why the Family Court’s findings might well be a problem for his professional position. And it came to pass that his regulator, Social Work England (SWE), made an application for a transcript of the fact-finding judgment. 

The First Instance Decision

HHJ Ahmed refused SWE’s application for the transcript for the following reasons:

  1. There was a risk the father would lose his job as a result of the disclosure and that in turn would negatively affect his ability to provide financial support to Z. The judge concluded that the father was unlikely to be able to meet his “current obligations to the same level as now and that is likely to increase animosity between the parents. None of that is in [Z’s] best interests”. 
  2. There was a need to maintain confidentiality for Z and it was in her best welfare interests that the risk of wider disclosure of the facts and allegations in the case was kept to a minimum. 
  3. There was a need to encourage frankness in children’s cases (i.e. disclosing the fact-finding transcript could discourage parties or witnesses from being open in the future). 

The judge concluded that the public interest in disclosure of the judgment was outweighed by the “serious harm” that was likely to Z from disclosure and added that SWE could “conduct its own fact-finding investigation without disclosure of the fact-finding judgment” (§19). 

Interestingly, it was the mother who appealed the judge’s decision and not SWE. The Guardian reports the mother saying, understandably, “This was not my fight to take on. I felt like a turkey voting for Christmas because my financial circumstances could be impacted if my ex loses his job. But it was a vital matter of public protection.” 

The Role of SWE

Despite SWE originally making the application for disclosure, HHJ Ahmed did not invite submissions from it before refusing the application. The appeal court did hear from SWE and it is clear that SWE’s statutory role was highly relevant to the appeal. SWE is the regulatory body for registered social workers, with an overarching objective to protect the public. Common to some other professional regulators, e.g. the General Medical Council (GMC), this involves protecting, promoting and maintaining the health, safety and well-being of the public; promoting and maintaining public confidence; and promoting and maintaining proper professional standards. Under its ‘Professional Standards’ a social worker is obliged to declare to SWE anything that might affect his ability to do his job competently or his fitness to practise, or if he is subject to criminal proceedings, or if regulatory findings are made against him (there are obvious similarities with obligations on doctors under the GMC’s ‘Good Medical Practice’). As might be expected, SWE has procedures for investigating fitness to practise concerns and holding hearings, which can be in private, and decisions can be redacted or anonymised.

Overview of the Law

These being family proceedings, the fact-finding part of the proceedings were held in private and the disclosure of information relating to those proceedings was liable to amount to contempt of court. Disclosure of the transcript needed the court’s permission. 

The key decision relied on by Knowles J was Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, a Court of Appeal authority concerned with disclosure of information from family proceedings to the police. The same principles had been held applicable in case law relating to disclosure to professional regulatory bodies (see e.g. Re D (disclosure) [1998] 1 FLR 433, a case concerning the Probation Service). It is worth summarising the factors identified in re C as likely to be relevant when determining an application for disclosure to the police:

  1. The welfare and interests of the child(ren) concerned in the proceedings. 
  2. The welfare and interests of other children generally. 
  3. The maintenance of confidentiality in children’s cases. 
  4. The importance of encouraging frankness in children’s cases. (Knowles J also considered Re D and M (Disclosure: Private Law) [2002] EWHC 2820, in which Hedley J stated that the need to encourage frankness in private law proceedings might be greater than in public law proceedings because, in the former, the Court was likely to be far more dependent on the evidence of the parties rather than external investigations by agencies). 
  5. 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.
  6. The public interest in the prosecution of serious crime and punishment of offenders.
  7. The gravity of the alleged offence and the relevance of the evidence to it. 
  8. The desirability of cooperation between various agencies concerned with the welfare of children. 
  9. The fact that under s98 of the Children Act 1989 a witness is not excused from answering incriminating questions, but any such incriminating statement would not be admissible in criminal proceedings against him. 
  10. Any other material disclosure which has already taken place. 

Scanning an eye down this list shows that HHJ Ahmed’s decision was grounded only in a small number of these factors. 

The Appeal

The appeal was brought on two grounds. First, it was argued that, although the judge had listed the factors in re C and applied those he considered relevant, he did not explain why others were not relevant and did not adequately explain why the public interest in disclosure was outweighed by the serious harm to Z. Secondly, the mother was critical of the judge’s conclusion that SWE could conduct its own investigation. This argument included a complaint that the father had actually breached confidentiality by disclosing information about the family proceedings to SWE, without the court’s permission. 

The Decision on Appeal

The appeal was allowed on both grounds and the decision was re-made rather than remitting it to the lower court.  

First, Knowles J found that the judge had failed to explain why certain factors in re C were not relevant. In doing so she identified, inter alia, the failure to consider the public interest in disclosure and the desirability of cooperation between agencies concerned with the welfare of vulnerable people and children. She was clear there were sufficient parallels between the protection of children and vulnerable adults, so that re C could be applied to the adults with mental health issues that the father worked with. This part of the decision, i.e. looking beyond Z and to the wider public, is perhaps not surprising. 

Knowles J also found there had been a failure to invite submissions from SWE prior to making the disclosure decision. Such submissions were likely to have: (a) directed the judge to the relevant case law on disclosure of information from family proceedings to professional regulatory bodies; (b) reminded the judge that SWE was a statutory body with an obligation to protect the public and to ensure social workers were fit to practise; (c) drawn his attention to the applicability of Re C factors when the welfare of vulnerable adults was at stake; and (d) reminded him that disclosure could be made subject to safeguards.

In remaking the decision Knowles J went through the Re C factors. Of particular note for those who work in regulatory proceedings, she emphasised SWE’s familiarity with receiving and managing highly sensitive and confidential information which should “command the respect of the family court” (§59). She also focused on the gravity of the father’s violent, abusive and controlling conduct and how relevant it was to SWE’s statutory role. She noted that the fact-finding judge had found the father to be untruthful about the injury to the mother’s hand (dishonesty ‘alarm bells’ for a regulator, no doubt). 

Ultimately Knowles J decided that the fact-finding judgment, suitably redacted, should be disclosed to SWE. 

Comment on Process

The Guardian reported the mother to have said that, when she first heard the news about the police officer, David Carrick (a Metropolitan Police officer who has pleaded guilty to over 80 serious offences against women, including former partners), her “blood ran cold”. She realised that someone like him could have findings of domestic abuse made against them in the family courts and those findings might not be disclosed to the appropriate regulator.

Knowles J gave some guidance to judges that might help in similar situations, which admittedly are likely to be rare. This would put the onus on judges to consider making disclosures to regulatory bodies and included:

  1. 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.
  2. It is desirable that the court takes responsibility for considering this to prevent the need for a victim of abuse having to draw this to the court’s attention.
  3. If disclosure is opposed by the parties, the judge should consider inviting the regulatory body to intervene in the proceedings. 

One might wonder why this is not standard practice already. As the mother in this case commented, this was not her fight to take on. Otherwise there might be a reliance on the perpetrator of the misconduct to (accurately) report him/ herself to the regulator (and indeed, here the mother had argued that doing so had in fact breached confidentiality rules in the family court). 

Finally, ‘Good Medical Practice’, the ethical standards for doctors, combined with the GMC’s guidance on ‘Reporting Criminal and Regulatory Proceedings Within and Outside the UK’ (2003) provides that a doctor must self-report to the GMC if he has been criticized by an official inquiry. This is said to mean criticism by “a public/ formal inquiry” or “a tribunal in the public domain”. Knowles J’s suggestions would avoid questions about whether this actually applies to fact-findings determinations in family court proceedings held in private. 

Leanne Woods is a barrister at 1 Crown Office Row whose work includes professional regulation

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