This article primarily relates to public law proceedings but also has some relevance to private law proceedings.
Parents can concede findings of fact by way of admissions in proceedings relating to their children, or findings can be found by the court, subject to the requisite evidential standard (not the focus of this article) in a fact-finding hearing.
It can be bad enough for a parent to have findings made against them, with potentially profound consequences for subsequent welfare decisions relating their future relationship with their children, including permanent separation or safeguards and restrictions to ensure safe contact.
What though of wider implications, including whether for example current or future employers, or professional organisations, should be notified?
Clearly, anyone making a job application must answer all questions truthfully, and if for example a response to a question in the negative which would otherwise contradict a finding made by a court was false, there could be severe consequences, including in the criminal and/or civil jurisdiction.
Alternatively, there might be a concurrent criminal investigation such that the police might want to be provided with details of findings.
Another possibility is that there could be risks to others, for example where a parent against whom findings have been made works with children or other vulnerable people to whom they might therefore present a risk.
The starting point is that proceedings relating to children are confidential.
S 97 (2) Children Act 1989 provides that:-
“No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify-
- any child being involved in any proceedings before the High Court or the Family Court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
- an address or school as being that of a child involved in any such proceedings”
This is not an absolute prohibition, and S 97 (4) allows for it to be dispensed with during the proceedings in certain circumstances predicated upon the welfare of the child.
S 12 (1) Administration of Justice Act 1960 provides that it shall be a contempt of court to publish information in proceedings brought under the Children Act 1989 or the Adoption and Children Act 2002. “Publication” means most forms of dissemination, whether oral or written.
In Clayton v Clayton [2007] 1 FLR 11, CA, it was held that although the s 97 (2) prohibition ends once the proceedings have been concluded, the provisions of the Administration of Justice Act 1960 s 12 remain, and that furthermore during the proceedings the judge could issue an injunction or make an order preventing identification for a period beyond the proceedings.
In Griffiths v Tickle [2021] EWCA Civ 1882 the Court of Appeal undertook extensive consideration of the authorities in relation to the balancing exercise to be undertaken in determining whether to dispense with the prohibition.
Approving the approach adopted by the House of Lords in Re S (A Child) (Identification; Restrictions on Publication) [2004] 4 AE 683, it was stated that the interests of the subject child were a “major factor” and “very important”, but not paramount.
Additionally, the Family Proceedings Rules 2010 (“FPR”) include provisions in respect of the confidentiality of proceedings relating to children.
FPR 2010 Rule 12.73 allows disclosure of materials from family proceedings to specific people and bodies falling into 3 categories:-
- R 12.73 (1) (a) – Communications that can be made as a matter of right.
- R 12.73 (1) (b) – Communications that may only be made with the court’s permission.
- R 12.73 (1) (c) and PD 12 G ss 1 & 2 – Communications that may be made but are subject to any direction by the court, including in appropriate circumstances a direction that they should not be made; and
The list in R 12.73 (1) (a) above includes legal representatives and professional legal advisors, the latter having been held in Re B (A Child) (Disclosure of Evidence in Care Proceedings) [2012] 1 FLR FD to include a solicitor representing a party in family proceedings in related criminal proceedings. Please see below however regarding disclosure sought by the police.
The circumstances in which automatic permission applies are set out in table form within PD 12 G.
That list includes disclosure by a party (ostensibly the Local Authority) of the text or summary of the whole or part of a judgement given in the proceedings to the police for the purpose of a criminal investigation, or to the CPS to enable it to discharge its functions.
A Local Authority must provide this information upon request by the police.
The judge in giving a judgement which they consider should be brought to the attention of the police may make directions for their judgement or an agreed note to be sent to the police.
Further or more wide-ranging disclosure however would be expected to be the subject of an application by the police for disclosure, to be made on Form C2.
S 98 Children Act 1989 includes some protection in criminal proceedings for parties to care proceedings providing self- incriminating admissions, to encourage honesty in the interests of the subject children, but the protections are by no means absolute, and these matters are beyond the scope of this article.
In a very recent case in the High Court Re X (A Child) (Disclosure to the NMC) [2025] EWFC 332 Ms Justice Henke considered an application by a Local Authority for permission to disclose a judgement by her against a registered nurse (mental health) to his regulatory body, namely the Nursing and Midwifery Council (“NMC”); that body’s aims including the protection of the health and well-being of the public.
The NMC was conducting an ongoing investigation into his fitness to practise, alongside an ongoing criminal investigation into a complaint made by a third party against the father about his conduct to her when she was aged 16, that complaint being linked to the proceedings heard by Ms Justice Henke and the findings made by her. The NMC required the materials above to inform its investigation.
Ms Justice Henke determined that, notwithstanding that the care proceedings had by then been concluded, confidentiality continued to apply post- proceedings for the reasons set out above, and that the circumstances of the particular case did not fall within the table at PD 12 G, and that the matter fell within R 12.73 (1) (b).
She reviewed a number of authorities in which the court had considered the approach to be taken to disclosure including in recent years in Re Z (Disclosure to Social Work England: Findings of Domestic Abuse) [ 2023] 2 FLR 995 and the General Dental Council v KK and Another [2024] EWHC 3053, from which it was concluded the principles and approach to be adopted by the court could be found in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom RE EC (Disclosure of Material) 2 FLR 725 @ 85 & 86 in which a list of factors, stressed to be provided in no particular order, as their importance would vary from case to case, was provided.
The list is extensive and not repeated here but includes the welfare and interests both of the children subject to the proceedings and of other children generally, the maintenance of confidentiality in children cases, public interests including in the administration of justice and the prosecution of serious crime and the punishment of offenders, the gravity of the alleged offence and the relevance of the evidence to it and the desirability of cooperation between various agencies concerned with the welfare of children (including Social Services departments, the police, medical practitioners, health visitors and schools).
The approach in Re C was affirmed in the Court of Appeal in Re M (Children) [2019] EWCA Civ 1364 in which Sir Andrew McFarlane P stated that applications should only be granted if the criteria was satisfied and if necessary and proportionate to do so.
In Re P (Children) (Disclosure) [2022] EWCA Civ 495 it was emphasised that the circumstances in which disclosure decisions were made will be variable and will require the court to make an evaluative judgement, and that Re C did not create a presumption in favour of disclosure.
In Re X Ms Justice Henke applied the relevant principles, including the requisite balancing exercise and granted an order in principle as sought by the LA (stayed briefly to give the father who had not participated in the hearing the opportunity to seek permission to appeal and to extend the stay in the meantime).
It was a significant feature of her decision that grave findings had been made and that the father was working with vulnerable people, with potential risks to those in his care.
The decision, while including a valuable and helpful reminder in respect of the relevant authorities and principles was determined on its facts and balancing considerations, and it should be emphasised that, as above there is no presumption and any applications for disclosure requiring permission will similarly be determined on their facts and considerations.
I hope that this article will be of some interest and assistance to practitioners or parties faced with an application for disclosure of findings.
For more information about our family law team please contact clerks@becket-chambers.co.uk
