Mother wins appeal over sending of domestic abuse findings made against social worker father to regulator

A High Court judge has allowed an appeal brought by a mother over whether a judgment in long-running private law proceedings that made findings of domestic abuse against the father, who works as a social worker, should be sent to his regulator, Social Work England (SWE).

In Z, Re (Disclosure To Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 (Fam) Mrs Justice Knowles concluded that HHJ Ahmed “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 co-operate with each other”.

Outlining the background to the case, the High Court judge said that the father, a senior social worker who works with vulnerable adults, was found guilty of allegations of domestic abuse made by his ex-partner (the mother) in February 2022 at a fact-finding hearing.

In June 2022, Social Work England applied for a transcript of the fact-finding judgment, as it believed it might be of relevance to its ongoing investigation into the father's fitness to practise, the court heard.

On 26 August 2022, the judge refused the application by SWE. The reason behind the decision was as follows:

The judge stated that: “I can see that the public interest in disclosure of the judgment is outweighed by the serious harm that is likely to Z, [the father’s 10-year-old child] from disclosure. If disclosure were to be allowed, it is very likely that [Z's] welfare would be adversely affected, and her life changed in important respects. SWE can conduct its investigation without disclosure of the fact-finding judgment.”

The mother applied for permission to appeal this decision and permission to appeal on two grounds was granted by Morgan J on 18 November 2022.

The grounds on which permission was given were as follows:

1. the judge had failed to balance the public interest in disclosing the fact-finding judgment to SWE in order for them to conduct a further risk assessment of the father and to ensure the father did not pose a risk to the public; and
2. the judge was wrong to find that SWE could conduct its own investigation without disclosure to it of the fact-finding judgment.

Dr Charlotte Proudman, counsel for the mother, submitted that she was critical of the judge's conclusion that SWE could conduct its own investigation in the absence of any disclosure of the fact-finding judgment.

Dr Proudman invited Mrs Justice Lieven to remake the decision on the basis that the balancing exercise “pointed unequivocally towards disclosure” and submitted that Z's confidentiality could be protected by “anonymisation and appropriate redaction of the judgment”.

SWE, which intervened in the case, adopted the submissions made on behalf of the mother. Its counsel, Jessica Purchase, submitted that the judge had “failed to consider any of the relevant case law about disclosure from family proceedings to professional regulatory bodies”.

The father, who appeared in person, submitted that HHJ Ahmed was correct to consider the damage which disclosure might cause to Z's welfare and had been right to give “significant weight to this factor above all the others” set out in Re C.

He also submitted that Z's welfare would be seriously affected as he was very likely to be unable to work again as a social worker and thus would not be able to afford the necessary financial support for her needs.

Considering ground one: ‘failure to conduct the balancing exercise correctly’, Mrs Justice Knowles concluded that “though the judge listed the Re C factors and applied those he considered were relevant, he did not explain why he regarded it as irrelevant, for example, to consider the public interest in disclosure or the desirability of co-operation between the various agencies concerned with the welfare of vulnerable people/children”.

The High Court judge also found HHJ Ahmed “fell into error by not inviting submissions from SWE prior to making his decision”. She allowed the appeal on ground 1.

On ground 2, ‘Wrong to find SWE could conduct its own investigation’, Mrs Justice Lieven also allowed the appeal, noting that while it may have been possible for SWE to have sought further information about the court's findings from the mother – or from the father, to have done so ran the risk that either the mother or the father would have been in contempt of court for revealing information about the family court's decision without the court's express permission.

She said: “Revealing the information in this way would also have left the child's identity and confidentiality unprotected and at the mercy of SWE's own processes rather than being in the control of the family court.”

Remaking the decision, the High Court judge said that whilst disclosure of the judgment to SWE “undoubtedly compromises Z's confidentiality”, the court has the power to “control the manner in which disclosure takes place” and to “apply safeguards protective of Z's private and confidential information”.

She concluded that despite the potential disadvantages for Z and her family, and for the father's private rights under Articles 6 and 8 of the European Convention for the Protections of Human Rights and Fundamental Freedoms 1950, “the need for public safety outweighs the father's rights to respect for his privacy”.

Observing the process of opposed disclosure applications such as the one in this case, Mrs Justice Knowles suggested guidance to other judges faced with similar, “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 (who, by reason of PD3AA, is a vulnerable party) 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; and
6. in the event that disclosure is refused, the court must send its disclosure judgment promptly to the regulatory body.

The High Court judge also “carefully considered” whether, in these circumstances, there should also be disclosure to the father’s employer, which she decided against. She said: “Disclosure to a regulatory body will trigger a process which is very likely to have well-established protections for the individual whose fitness to practise is under investigation and where the court can be confident that its disclosure will be carefully safeguarded”.

She added that employers are likely to be informed as part of a process which, “as it should, protect the rights of those whose fitness to practise their profession is under scrutiny”.

Mrs Justice Lieven allowed the appeal and remade the decision. She said that the fact-finding judgment would be disclosed to SWE “on condition that no part of the judgment or schedule is to be published on SWE's website”.

Lottie Winson