In Re Z (Disclosure to Social Work England) [2023] EWHC 447 (Fam), the High Court has overturned a decision of the Family Court not to disclose its fact finding against a father to his professional regulator, Social Work England.

Though applying established principles, this important case examines the necessity and desirability of privacy in Family Court proceedings when balanced against a statutory regulator’s overarching objective to protect the public.

In this insight, we explain the judgment and its potential effects on future requests for disclosure from the family courts for professional regulators.

Background

The appeal was brought within the context of long-standing family law proceedings between the mother and father of “Z”, a child. The father is a senior social worker working with vulnerable adults.

The mother had made allegations of domestic abuse against the father. A fact finding hearing took place in February 2022 and made serious findings against the father, which constituted domestic abuse, including a physical assault which had caused lasting disability to the mother’s hand; verbally abusing the mother, including in front of Z; emotionally abusing the mother in front of the child and engaging in controlling conduct.

In May 2022, Social Work England opened an investigation into the father’s fitness to practise, following a referral.

Similarly to other health and care regulators, Social Work England has an overarching objective to protect the public which includes to protect, promote and maintain the health, safety and well-being of the public; to promote and maintain public confidence in social workers, and to promote and maintain proper professional standards for social workers.

The Disclosure Judgment

In June 2022, Social Work England made an application to the Family Court for a transcript of the fact finding judgment.

The Judge dealt with the application for disclosure without an oral hearing, but invited the representations of both father and mother. The father (perhaps unsurprisingly) objected to the disclosure of the fact finding judgment to Social Work England. The mother’s eventual position was recorded as being supportive of disclosure.

The Judge refused Social Work England’s application. He held that there was a risk of financial detriment to Z should the father lose his job as a result of the disclosure, which could also increase animosity between the parents. It was also important to maintain confidentiality for Z, and to minimise the risk of wider disclosure of the facts of the case, and to encourage and promote frankness in children’s cases.

The Judge found that Z’s interests in these regards outweighed the public interest in disclosure. The Judge observed that Social Work England could “conduct its own fact-finding investigation without disclosure of the fact-finding judgment”.

Appeal

The mother, as a party to the ongoing private law proceedings, appealed the disclosure decision and Social Work England acted as an intervener. Until acting as an intervener, Social Work England were not provided with a copy of the disclosure judgment by the Family Court.

The grounds of appeal were that the Judge had failed to balance the public interest in Social Work England being able to assess the risk posed by the father and had wrongly concluded that Social Work England could do their own investigation without the disclosure. 

Mrs Justice Knowles, in allowing the appeal and ordering disclosure of the judgment to Social Work England, found that the Judge had failed to adequately balance the public interest in disclosure against the financial effects on Z if the father lost his job. The public interest includes not erecting barriers between various agencies (the Court and regulator) who are concerned with the welfare and care of vulnerable people. The Judge should have invited submissions from Social Work England before determining the application, which would likely have drawn the relevant authorities to his attention, as well as the overarching objective and data and information safeguards in place at the regulator.

The Judge was wrong to observe that Social Work England could conduct its own investigation without the Family Court findings. This would have led to a dependence on the father’s honest account of those allegations and findings made against him; and both mother and father could have been at risk of contempt of court for revealing information about the Family Court decisions and proceedings without express permission to do so.

Mrs Justice Knowles provided the following assistance to judges considering “these comparatively rare applications”:

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 pursuant to rule 12.73(1)(b) of the FPR 2010
2. 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…having to draw the matter to the court’s attention
3. the court should first invite the parties to confirm their positions with respect to disclosure in these circumstances
4. 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
5. preferably, the issue should be considered at an attended hearing with the regulatory body present
6. in the event that disclosure is refused, the court must send its disclosure judgment promptly to the regulatory body.

What the case means for future disclosure from the Family Court

For Social Work England, and other statutory regulators concerned with the protection of the public particularly the health, safety and welfare of vulnerable people, the judgment in this case will be welcomed. Though the Court relied upon long established principles, the additional guidance highlights the proactive and co-operative role the Family Court should play and the active participation of regulators in issues of disclosure.

How Capsticks can help

We have represented numerous regulators for more than 20 years, including making applications to use Family Court documents in regulatory proceedings.

For more information on any of the issues in this insight, please contact Sophie Sharpe or any of your regular contacts at Capsticks.