Fitness to practise investigations and family law proceedings – what information can be shared?
We look at an appeal in the context of family proceedings involving a child (Z), addressing when information from such cases may be disclosed to a regulator, for the purposes of fitness to practise investigations.
Background of case Re Z (Disclosure to Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 (Fam)
In February 2022, HHJ Ahmed (the judge) conducted a fact-finding hearing in respect of domestic abuse allegations made by the mother of Z against the father, a social worker registered with Social Work England (SWE).
On 22 June 2022, SWE applied for a transcript of the hearing on the basis that it may be relevant to a fitness to practise investigation it had commenced against the father. The judge refused the application. SWE sought and was granted permission to appeal that decision on the following grounds, namely that the judge:
- failed to properly have regard to and balance the public interest in SWE undertaking an assessment into the potential risk to the public; and
- was wrong to find that SWE could conduct its investigation without the transcript.
Decision
The appeal was heard by Mrs Justice Knowles, who conducted a thorough review of the legislation and case law relating to disclosure in family proceedings and allowed the appeal on both grounds.
The following points emerge from the decision:
- The court has the power, under the Family Procedure Rules 2010, to permit disclosure of information from proceedings involving children, for certain, specific purposes.
- Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, a case involving disclosure to the police, was also applicable to requests for disclosure to regulatory bodies and sets out a list of 10 factors likely to be relevant. They include the public interest in the administration of justice and the desirability of cooperation between agencies concerned with the welfare of vulnerable individuals.
- In this instance, whilst the judge referenced the Re C factors, he:
“… failed to have regard to the public interest in disclosing the fact-finding judgment to SWE in circumstances where it is highly desirable for the various agencies concerned with the welfare of children and vulnerable adults to cooperate with each other.”
- It was held that, knowing the father’s occupation and of SWE’s investigation, the judge should have fully addressed the public interest, rather than simply stating that the public interest was outweighed by the ‘serious harm to Z’. In failing to do so he, “undermined the balancing exercise required by Re C and rendered his decision unsafe.”
- The judge also fell into error by not inviting submissions from SWE before making his decision. Such submissions would likely have directed him to the relevant case law; reminded him of SWE’s statutory duties; and noted that disclosure could be made subject to certain safeguards, in order to protect Z, such as anonymisation.
- The judge’s decision that SWE could conduct its investigation in the absence of the transcript was “misconceived“.
Summary
This decision provides helpful guidance for regulators seeking information deriving from family proceedings in connection with fitness to practise investigations. If you have a query relating to this article please contact Gem Casey.
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