Should the findings made in family courts be accessible to safeguarding agencies?

Children – Public Law

27 January 2023

This article considers whether there would be a benefit to findings of fact made in public law family proceedings being centrally recorded and accessible to safeguarding professionals.

Where the facts of a case are in dispute in family proceedings, the court may hold a fact-finding hearing to determine the factual matrix.  The findings made usually relate to the harm suffered by a child as a result of neglectful or abusive parenting, or by virtue of things the child has witnessed or experienced.  The findings help safeguarding professionals understand what the child has experienced and consider how best to protect them.  The findings provide the basis for risk assessments, and relevant interventions intended to give parents the best chance of addressing the concerns regarding their parenting to be undertaken prior to the final determination of the case.

In the case of Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 para 2, Lord Hoffman stated, ‘The law operates a binary system in which the only values are 0 and 1.  The fact either happened or it did not’.  Thesis J[1] and Baker J[2] draw together the legal principles which must be applied in public law fact finding hearings.  These include; the burden of proof rests with the local authority; the standard of proof is the balance of probabilities, each piece of evidence must be considered in the context of other evidence, and speculation must be avoided.

The question is therefore posed, should the findings made in family courts be accessible to protect other children from harm?

The civil burden of proof in family courts means that findings of fact can be made in instances where the police do not proceed with a criminal case where of course the criminal standard of “sure” or “beyond reasonable doubt” must be met for a conviction to be secured.  These findings are recorded on individual local authority case files, but they are not centrally recorded by courts and therefore very serious findings can be made by a family Judge which do not follow the perpetrator and they may go on to harm another child.

The 2004 Bichard inquiry[3] considered the failings of vetting systems within police and relevant authorities which led to the murders of two school-girls; Holly Wells and Jessica Chapman.  In precis, Ian Huntley was previously known to authorities with allegations of eight sexual offences.  However, due to allegations not being highlighted within police checks at the time, he manged to secure a job at a school where he met and later murdered the two girls.  The police intelligence and reporting system now known as the Disclosure and Barring Service (DBS) was a recommendation from the Bichard inquiry and authorities have access to this for vetting purposes.  The enhanced DBS checks which are now used when professionals work with children or vulnerable adults provide other information which the Police hold, such as allegations which have not proceeded to a conviction.

If there was a database for findings of fact made in public law family proceedings, which is accessible to local authorities, schools and other safeguarding agencies this would serve to protect other children and vulnerable family members should a perpetrator move to another area.  This could be accessible as part of the enhanced DBS check, potentially with findings categorised or graded as with indecent images of children.  Potential disadvantages to a database of findings are that it could be perceived as unfair to store findings which have been made against people at the civil standard of proof, particularly if they have not been legally represented, and deciding who should have access to the database.

[1] A v W and others No 1 (Fact Finding) [2016] EWFC 64 para 7.
[2] Re IB and EB [2014] EWHC 369 (Fam).
[3] House of Commons ‘The Bichard Inquiry Report’ 22.06.2004. Accessed 22.08.2020.

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