“And upon the court determining that any application for contempt of court arising out of any unauthorised disclosure of the documents in these proceedings will be considered by the court and the court will notify the parties in due course as to the procedure to be followed for any contempt application, including whether His Majesty’s Attorney General should be notified.”
“[19] The Children Act proceedings relating to Z have - like other family proceedings - been heard in private. In those circumstances, the disclosure of information relating to those proceedings is liable to constitute a contempt of court. The court has a power to permit the disclosure of information about the proceedings either to the public at large or more narrowly. This power is contained in rule 12.73 of theFamily Procedure Rules 2010 [“the FPR”] which also sets out certain limited circumstances under which communication of information relating to proceedings that have been held in private is automatically permitted. The more detailed table set out atPractice Direction 12G provides a general authority, by reference to rule 12.73(1)(c) and rule 12.75, for the disclosure of information in proceedings relating to children for certain specified purposes. [20] Therefore, the scheme of the current rules is that communication of information relating to children proceedings falls into three categories: a) communications under rule 12.73(1)(a), which may be made as a matter of right; b) communications under rule 12.73(1)(c) andPractice Direction 12G paragraphs 1 and 2, which 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 c) other communications, which under 12.73(1)(b) may only be made with the court’s permission. [21] It is common ground that neither (a) or (b) above applies in this case and that the fact-finding judgment can only be disclosed to SWE if the court gives permission for this to occur. [22] The court’s discretion to permit disclosure pursuant to rule 12.73(1)(b) is not unconstrained. The acknowledged and long-standing authority on the approach to be adopted by a court when determining an issue of disclosure is the decision of the Court of Appeal in Re C. The leading judgment was given by Swinton Thomas LJ with whom Henry and Rose LJJ both agreed. Though the wording of the relevant procedural provision applicable at that time [FPR 1991, rule 4.23(1)] was in slightly different terms to rule 12.73 of the FPR, any difference is not material for the purposes of this appeal. Thus, having reviewed the relevant authorities, Swinton Thomas LJ identified 10 factors which were likely to be relevant when determining an application for disclosure to the police. The list is preceded by an important caveat: “In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case. (1) The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor. (2) The welfare and interests of other children generally. (3) The maintenance of confidentiality in children cases. (4) The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which section 98(2) applies. The underlying purpose of section 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given. (5) The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another inimical to the overall interests of justice. (6) The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor. (7) The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order. (8) The desirability of cooperation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools etc. This is particularly important in cases concerning children. (9) In a case to which section 98(2) applies, the terms of the section itself, namely that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations. (10) Any other material disclosure which has already taken place [23] The approach described by Swinton Thomas LJ in Re C was reaffirmed by the Court of Appeal in Re M (Children)[2019] EWCA Civ 1364 (see paragraph 70) as one which identified the likely relevant factors and described how the balance was to be struck between the competing factors in play. Additionally McFarlane P noted that applications for disclosure should only be granted if the criteria in Re C were satisfied and it was necessary and proportionate to do so (paragraph 82). In 2022, the Court of Appeal in P (Disclosure) once more endorsed the Re C approach and noted that (a) the circumstances in which disclosure decisions were made will be variable and will require the court to make an evaluative judgement and (b) Re C did not create a presumption in favour of disclosure (paragraph 18). It stated as follows (paragraph 18): “...The question in each case is which public interest should prevail on the particular facts. This well-established approach, predating theHuman Rights Act 1998 , was recently endorsed by this court in Re M[2019] EWCA civ 1364 at [68] to [70]. It provides a filter on the outgoing disclosure from public and private law children cases in a manner that is sensitive to the article 6 right to a fair hearing.” [24] I pause to note that, since Re C, the relative importance of the ten factors identified by Swinton Thomas LJ has “inevitably changed” since it was decided, as Baker J (as he then was) observed in paragraph 36 of X and Y (Disclosure of Judgment to the Police)[2014] EWHC 278 . He noted that the cloak of confidentiality surrounding care proceedings had been “significantly lifted” by the successive relaxation of the rules concerning disclosure in the FPR and that there were moves towards much greater transparency in care proceedings for the reasons explained in Re P (A Child)[2013] EWHC 4048 (Fam) . Since Baker J’s observations, the move towards greater transparency in the family court has accelerated, not just with respect to care proceedings but with respect to family proceedings generally. In that regard, I note that, at the time of writing this judgment, a pilot is taking place in three family courts (Cardiff, Leeds and Carlisle) to provide greater transparency in all proceedings relating to children. The aim of the pilot is to introduce a presumption that accredited media and legal bloggers may report on what they see and hear during family court cases, subject to strict rules of anonymity. Those observations provide context but play no part in this court’s decision on disclosure which must have regard to authoritative case law. [25] Though Re C was concerned with disclosure of information from family proceedings to the police, its principles have also been held to be applicable in the case law relating to disclosure of information from family proceedings to professional regulatory bodies. Re R (Disclosure)[1998] 1 FLR 433 concerned an application by the father’s employer, the Probation Service, for disclosure of a psychiatric report which opined that the father might pose a risk to children. In allowing disclosure of this report, Kirkwood J explained the purpose of the application, namely: “At the core of the application is the obvious point that, as a probation officer, Mr R has to have close, balanced and responsible dealings with families and people of all ages. It is the chief probation officer’s duty to ensure that the probation officers within his area of responsibility are suitable people to do that work. It is plainly and strongly indeed in the public interest that he carries out that responsibility and that an unsuitable person does not continue employment as a probation officer. Accordingly, it is undoubtedly, as I find, in the public interest that there be disclosure to him as Mr R’s chief probation officer of the material that, as he knows, has given cause for concern” [435] [26] In coming to his decision, Kirkwood J applied the factors in Re C which seemed to him to be of importance and robustly ordered disclosure of the psychiatric report subject to a variety of safeguards, including limiting those within the probation service who had access to it. [27] In Re L (Care Proceedings: Disclosure to Third Party)[2000] 1 FLR 913 , Hogg J permitted disclosure of her judgment, the expert medical reports, and the minutes of two experts’ meeting to the UK Central Council for Nursing, Midwifery and Health Visiting [“UKCC”]. The case concerned a mother who was a paediatric nurse and who had been diagnosed with a severe personality disorder. The judge had made findings that the child concerned had suffered significant emotional harm in the mother’s care by reason of the mother’s deteriorating mental and emotional state. The experts involved in the case had advised the court that the mother posed a risk to any child in the mother’s care. The application for disclosure appears to have been prompted by the expert evidence of a consultant psychiatrist who had opined that he had a duty to refer the mother to the UKCC. The UKCC was not aware of the details of the application but it had attended court to assist Hogg J with information about its regulatory processes. [28] In her judgment, Hogg J set out the statutory framework which governed the UKCC’s responsibilities and noted that: “The UKCC, being a statutory body, has an obligation to ensure that nurses are fit to practise and an obligation to protect as far as possible vulnerable members of the public, namely patients, and in this case vulnerable children [916]”
“[47] I accept, of course, that the mother is not working with children but with adults. But the important point is that they are vulnerable adults who may well not be able to look after themselves nor, as with a child, necessarily able to give a coherent account in relation to any harm that they suffer. [48] There are, in my judgement many factors connecting the care of children with the care of vulnerable adults. Both are likely to be dependent upon their carer for their physical, psychological, and emotional support. They may well not be able to provide or to manage without such support, nor properly to look after themselves. Their ability to draw attention to any harm caused to them could equally be reduced or non-existent. [49] While there are limitations on the comparison, the standards to be expected of those looking after children may be no less than those looking after vulnerable adults. The skills required may be different.” [30] Sumner J applied the Re C factors and stated that he was “strongly of the opinion that there should be disclosure in this instance” [59]. In conclusion, he said this: “[60] Public interest in disclosure is enhanced where there is not only a statutory duty on local authorities to share such information, but also a clearly established procedure on how the receipt of such information should be managed. They may or may not decide to make a referral. If they do make such a referral, the protection of the care worker is fully set out and a proper appeal system laid down. It does not differ significantly from the duty on the GMC or the UKCC. [61] The local authority are not seeking to inform some individual or some association unfamiliar with the receipt of such details. They wish to inform one that is well familiar with it and for which a proper statutory procedure for the protection of vulnerable adults is clearly established. I am satisfied that this case falls more closely in line with those decided by Kirkwood J, Hogg J and Bodey J to which I have referred. In balancing the various interests and exercising all due caution, nevertheless the decision comes down clearly on the side of disclosure for which there is a clear and potent argument.” [31] All the above cases concerned public law proceedings relating to children. Re D and M (Disclosure: Private Law)[2002] EWHC 2820 (Fam) concerned private law proceedings for contact, during which the father admitted having a consensual sexual relationship with his half-sister. Applying Re C, Hedley J refused to allow disclosure to the police but permitted disclosure to the relevant local authority on condition that there would be no further disclosure without the court’s permission. In his judgment, Hedley J drew attention to the fact that parents who gave evidence in private law proceedings did not have the protection ofs. 98 of the Children Act 1989 . The effect of s. 98(1) is to require a witness to answer all questions irrespective of whether he might thereby incriminate himself but s. 98(2) provides that any such answer may not be used in criminal proceedings. However, s. 98 only applies to public law proceedings and does not apply to private law proceedings underPart II of the Children Act 1989 . [32] Hedley J stated the following: [8] It must be the case in private law proceedings no less than in public law cases that the court should do all it can to encourage as well as require frankness from witnesses and, in particular, from parents. More so in private law cases than in those under Part IV is the court dependent for the accuracy of its information on the evidence of parents. These cases have far less external investigation as a rule and far more does the court have to find facts based on an evaluation of the evidence of parents. Frankness is therefore a rich evidential jewel in this jurisdiction. [9] I recognise, of course, that frankness cannot come at any cost and the court must also have regard to the gravity of the offence, in particular where that offence may put at risk these or other children, and the court cannot close its mind to public policy issues where grave crime is involved. The court must also have regard to the welfare of the children concerned. Indeed I recognise that in fact every issue set out in Re C (above) may well be relevant. However, it would be my view given both the need for parental honesty and the absence of s 98(2) protection, that the need for encouraging frankness might well be accorded greater weight in private law proceedings and that accordingly the court might be more disinclined to order disclosure.” [33] The Court of Appeal in P (Disclosure) quoted the above passages from Hedley J’s decision and then stated this (paragraph 21): “ In the present case, the judge was urged to allow the father’s application on the suggested principle that there is an elevated need for frankness in private law proceedings. Hayden J disagreed, saying that the absence of the protection afforded by s. 98(2) in private law proceedings might lead to a judge placing greater emphasis on frankness when determining a disclosure application, but that did not follow inevitably, nor had Hedley J suggested that it did. We agree and would add that the headnote to the law report inaccurately states that the need to encourage frankness ought to, rather than might well (as Hedley J said) be given greater weight in private law proceedings. The dicta in D v M add no support to the father’s argument.”
“ In the present case, the judge was urged to allow the father’s application on the suggested principle that there is an elevated need for frankness in private law proceedings. Hayden J disagreed, saying that the absence of the protection afforded by s. 98(2) in private law proceedings might lead to a judge placing greater emphasis on frankness when determining a disclosure application, but that did not follow inevitably, nor had Hedley J suggested that it did. We agree and would add that the headnote to the law report inaccurately states that the need to encourage frankness ought to, rather than might well (as Hedley J said) be given greater weight in private law proceedings. The dicta in D v M add no support to the father’s argument.”