X, Re [2025] EWFC 479

[2025] EWFC 479
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON TRANSFER FROM THE FAMILY COURT SITTING AT LUTON
IN THE MATTER OF X
BEFORE THE HONOURABLE MRS JUSTICE ARBUTHNOT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 th November 2025
Before
MRS JUSTICE ARBUTHNOT DBE
IN THE MATTER OF THE DISCLOSURE AND BARRING SERVICE AND A LOCAL AUTHORITY
Hearing Hearing date: 4 th September 2025
Fiona Scolding KC (instructed by DBS Legal Services) for the Applicant
The other parties were not given notice of the application and therefore not represented.
Ex tempore judgment: 4 th September 2025
Final judgment: 27 th November 2025 Amended final judgment (non-substantive amendments): 26 th January 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 16:49 on 27 th November 2025 by circulation to the parties or their representatives by e-mail. An amended version (with non-substantive changes) was emailed to the parties and released to the National Archives on 26 th January 2026.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
[1]This is an application brought by the Disclosure and Barring Service (“DBS”) on 24 July 2025 for a local authority to disclose to them findings made by the Family Court following public law proceedings which took place in 2021 concerning a family. The DBS was told by the local authority that there had been a fact finding and welfare hearing in respect of children of the family in 2021, and it sought to receive both the judgment and other relevant information generated by public law family proceedings relevant to their jurisdiction.[2]The DBS also seeks to dispense with service of these proceedings on those who were party to the Family Court proceedings.[3]The DBS provided this court with a list of documents which they say are relevant to their consideration under the SVGA 2006, which included judgments given in the fact finding and welfare hearings: orders of the Family Court made following those hearings: the statements of the parents to the proceedings, and the report of the children’s guardians, as well as expert evidence provided in respect of the physical injuries sustained by a child of the family and any psychiatric report about the member of the family who was the subject of consideration by the DBS.

Role and jurisdiction of the DBS

[4]The DBS is responsible for deciding, pursuant to the Safeguarding and Vulnerable Groups Act 2006 (“SVGA 2006”), whether individuals should or should not be placed on a list which prohibits individuals from undertaking “regulated activity” with either children, vulnerable adults or both groups (under Paragraph 3 and 9 of Schedule 3 to the SVGA 2006). The meaning of regulated activity is complex but is in effect the undertaking of direct roles teaching or caring for children or vulnerable adults.[5]Paragraph 2 of Schedule 3 to the SVGA 2006 and the Prescribed Criteria and Miscellaneous Provisions Regulations 2009/37 set out the basis upon which someone can be placed upon the barred list, which includes where they have been convicted of certain offences.[6]The DBS received information in 2024 that X has been convicted of an offence and that the individual had, or may be wanting to engage in regulated activity. As a result of receiving this information, it is under a statutory obligation to seek relevant information about the nature of the child protection or other concerns which may mean that the criteria is met to place the individual on the relevant barred list – the nature of the offence committed by X meant that it was an offence where barring would be automatic if representations were not made. The DBS does not undertake investigations itself, but relies upon, and has under the statutory scheme the power to seek information from various bodies – which includes a local authority.[7]Section 40 of the SVGA 2006 says as follows: “ Local authorities: duty to provide information on request. 1) This section applies if DBS is considering – a) Whether to include any person in a barred list b) Whether to remove any person from a barred list 2) If DBS thinks that a local authority hold any prescribed information relating to the person, it may require the authority to provide it with that information. 3) The local authority must comply with a requirement under subsection (2) . 4) “Local authority” has the same meaning as in section 1 of the Local Authorities (Goods and Services) Act 1970.” a) Whether to include any person in a barred list b) Whether to remove any person from a barred list[8]What is “prescribed” is, under s60 of the SVGA 2006 to be set out in Regulations made by the Secretary of State. The “prescribed information” for the purposes of section 40 is defined in the SVGA 2006 (Prescribed Information) Regulations 2008/3265. Regulation 7 reads :
“Local authorities: duty to provide information on request. The following information is prescribed for the purposes of section 40(2) of the Act (a) The information specified in paragraphs 1 to 3, 5, 6, 9 and 10 of the Schedule; (b) Any information other than that relating to P’s conduct which is likely to, or may be, relevant in considering whether P should be included in or removed from a barred list including information contained in reports of and minutes of meetings arising from investigations relating to the protection of children or vulnerable adults.”
[9]The relevant information set out in the paragraphs include whether someone is or was engaged in regulated activity (paragraph 2); a summary of conduct undertaken by an individual including the setting and location where it occurred, details of any child or vulnerable adult to whom harm took place and detail of that harm as a result of conduct: information about the vulnerability of the child or vulnerable adult that may be relevant to the DBS, and any explanation offered by P for the conduct or any information relating to P’s conduct including any information about previous offences, allegations, incidents, behaviours or acts or omissions (paragraph 5): Information why the person providing information to the DBS considered that P may be at risk of harm (paragraph 6). Paragraph 10 permits the local authority to provide details of any action taken, by the person referring or providing information under the Act to the DBS in relation to P’s conduct including whether or not the matter has been referred to the police or to any other person. Paragraph 9 of the Schedule provides that the prescribed information also includes: 9. Details of any other proceedings before any court, tribunal or any other person taken or to be taken in relation to P’s conduct including the outcome of any such proceedings and including proceedings commenced under the Children Act 1989

The Administration of Justice Act 1960, the Children Act 1989 and the Family Procedure Rules

[10]Section 12 of the Administration of Justice Act 1960 prevents publication of information relating to proceedings before any court sitting in private dealing with, amongst other things, proceedings under the Children Act 1989. Publication is a contempt of court. This does not include the text or summary of the whole or part of an order(section12(2)). Section 12(4) of the AJA 1960 provides that: Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).[11]On the facts of this case, section 97 of the Children Act 1989 which deals with maintaining the privacy of children during proceedings under the Children Act 1989 (amongst other proceedings) does not apply as the proceedings had finished by the time that the DBS asked for information.[12]The Family Procedure Rules (2010/2955) (“FPR 2010”) set out general rules about communication of information from the court or parties to others under Part 12. FPR 12.73 says that : 1) For the purposes of the law relating to contempt of court, information relating to proceedings to be held in private (whether or not contained in a document filed with the court) may be communicated – a) where the communication is to (viii) a professional acting in furtherance of the protection of children; (b) where the court gives permission , including as provided for under rule 12.73A; or (c) Subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G. 2) Except as provided for under rule 12.73A, nothing in this Chapter permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.[13]Rule 2.3 provides an explanation of who is a “professional acting in furtherance of the protection of children”. It says as follows:
“professional acting in furtherance of the protection of children” includes – (a) An officer of a local authority exercising child protection functions ; (b) A police officer who is – (i) Exercising powers under section 46 of the Act of 1989 or (ii) Serving in a child protection unit or a paedophile unit of a police force (c) any professional person attending a child protection conference or review in relation to a child who is the subject of the proceedings to which the information regarding the proceedings held in private relates: (d) An officer of the National Society for the Prevention of Cruelty to Children : (e) a member or employee of the Disclosure and Barring service, being the body established under section 87(1) of the Protection of Freedoms Act 2012” (i) Exercising powers under section 46 of the Act of 1989 or (ii) Serving in a child protection unit or a paedophile unit of a police force (c) any professional person attending a child protection conference or review in relation to a child who is the subject of the proceedings to which the information regarding the proceedings held in private relates: (d) An officer of the National Society for the Prevention of Cruelty to Children : (e) a member or employee of the Disclosure and Barring service, being the body established under section 87(1) of the Protection of Freedoms Act 2012”

The request of the DBS to the Local Authority

[14]The DBS was told by the police that X had been convicted of an offence of “causing or allowing a child or vulnerable adult to suffer serious physical harm” under section 5(1) and section 5(8) of the Domestic Violence, Crime and Victims Act 2004, after they had applied to work in a role in early years which amounted to “regulated activity”. As a result of this information, the DBS issued an “intention to bar letter”, enabling X to make representations about whether they should be barred.[15]The offence for which they were convicted, falls, under the SVGA 2006 legislative scheme, as an “auto bar” offence with representations. Put shortly, this means that X may be placed on the barred list(s) given their offence (paragraphs 2 and 8 of Schedule 3 of the SVGA 2006), but they may make representations to the DBS as to why they should not be placed on that list before any barring decision is made. If no representations are made, the DBS must place the person on the relevant list if they have reason to believe that they are, have been or might in the future be engaged in regulated activity. If representations are made, then the DBS has to consider all the material supplied and make a decision in respect of that individual’s appearance on the relevant lists in line with the legislative scheme. This involves an assessment of the risk that the person may pose to children or vulnerable adults.[16]X made representations after receiving the “intention to bar letter”. They acknowledged their conviction, but identified mitigating factors in respect of their mental health and their position as the victim of domestic abuse at the date of the offending and identified that they should not be barred.[17]Upon receipt of this information, the DBS sought to gather further information about the incident which led to their conviction and about the family proceedings which the DBS had been told by the police had taken place. They therefore contacted the local authority on two occasions. After the second occasion, the local authority informed the DBS that there had been a fact finding hearing in public law family proceedings and that X had been found to have inflicted injuries to a child and that the partner had failed to protect the child. Following on from this, the DBS asked the local authority for a copy of that judgment (again on two occasions).

The response of the Local Authority

[18]The local authority responded to say that it was not entitled to disclose the documentation (this was despite being told about section 40 and paragraph 9 as set out above) as the DBS was not an organisation to which the authority could supply information under the Practice Direction to Part 12 of the Family Procedure Rules, Practice Direction 12G. In response the DBS sent a further letter setting out the legislation and the relevant Family Procedure Rules and asking for the information to be disclosed. The local authority continued to say that it wanted a court order. This has led to this application.

Reasons

[19]The DBS relies upon the SVGA 2006 and the Regulations, along with the relevant rules of the FPR and says that it is entitled to have that information from the local authority once it has been requested.[20]I have been taken by Ms. Scolding KC through the various statutory provisions under the legislation and the FPR and I consider that its approach is the correct one and the local authority was wrong in its understanding of the SVGA, the Regulations and the FPR.[21]I consider that FPR 12.73(1)(a)(viii) read with FPR 2.3 make it clear that the DBS is a professional acting in the furtherance of the protection of children and the local authority is entitled therefore to disclose information about proceedings held in private under the Children Act 1989 (and other proceedings dealt with by the family court) to the DBS. Section 12(4) of the AJA provides that it is not a contempt of court to disclose information where the rules of court authorise such.[22]The DBS has asked this court to disclose the information. This court could order the information to be disclosed but I consider the better approach is to order the local authority to disclose the information to the DBS given the terms of the SVGA and the FPR as set out above. I have no doubt that such an order should be made and that the information should be disclosed.[23]As an ancillary point, I will order that the names of other children who were the subject of the family proceedings and of any other family members who may have been mentioned in the proceedings should be redacted by the local authority prior to the disclosure of this information, alongside the date of birth of the children of the family – with their year of birth only and age in years set out in any information disclosed. If this will lead to a delay, I order a named person in the DBS to carry out the task of redaction of this information.

Should the parties to the family proceedings be notified of this application?

[24]There is a very limited list of individuals or bodies who are permitted to know whether someone is on the barred list for children and vulnerable adults, as set out at sections 43 – 53 of the SVGA 2006. These are limited to those who may wish to employ the individual, to use them in a voluntary capacity which would amount to regulated activity or other regulatory bodies and the police. The DBS is not permitted to share information with those who are not directly involved in seeking to engage someone in regulated activity, or for example, with those who made the original referral to the DBS or who may have been the subject of the conduct which has given rise to the DBS considering whether to place the person upon the barred list (Re SXM [2020] EWHC 324).[25]In this case, it is highly likely that the parties will include those who would have no right to know of the barred status of one of the parties to the proceedings.[26]I therefore consider that the DBS has applied the correct approach in not notifying the parties to the family proceedings. I trust that this judgment will be read by local authorities so that it is clear to them that, if asked, information should be disclosed to the DBS concerning family proceedings applying the law as set out above.

Cited in 1 later judgment