The confidential and delicate nature of family proceedings highlighted in the Fitness to Practise sphere

In General Dental Council v KK, Stockport Metropolitan Borough Council [2024] EWHC 3053 (Fam), Mrs Justice Knowles highlighted the importance of regulators following the correct procedures before obtaining documents pertaining to Family Court proceedings for use in fitness to practise proceedings.

This case concerned a dental technician, KK, who faced serious allegations about his fitness to practise arising from the Family Court’s findings in care proceedings about his domestically abusive conduct towards his then partner and the mother of his children. The General Dental Council (GDC) made a request to the local authority (Stockport Metropolitan Borough Council) for disclosure of information relating to the care proceedings and Stockport Council did in fact provide a significant volume of documents from and connected with the care proceedings to the GDC. This was provided in the absence of any order from the Family Court permitting such disclosure.

The purpose of the hearing before Knowles J was to determine whether the documents should be disclosed to the GDC and whether contempt of Court proceedings should be brought against the GDC and Stockport Council for obtaining documents without a Court order.

The law

Family Court proceedings are almost always in private, with strict rules as to what can and cannot be disclosed and/or publicised. This is to protect the confidentiality of the children and to promote honesty and openness from the parties who can be reassured that anything they say in Court will not be used against them elsewhere. Section 12 Administration of Justice Act 1960 makes it a contempt of Court to publicise information relating to proceedings before any Court sitting in private where it relates to care proceedings.

Under section 33B(2) (and section 36Y) Dentists Act 1984, the GDC has the power to require any person to supply information or produce any information in his custody or under his control which appears to the GDC to be relevant in assisting the GDC or any of its committees in carrying out its functions in relation to a person’s fitness to practise as a dentist or dental care professional. Failure to comply with such a requirement may result in the GDC applying for a County Court order requiring the information to be provided. However, this power has one important exception which provides that “nothing in this section shall require or permit any disclosure of information which is prohibited by any relevant enactment”. As such, the prohibition in section 12 Administration of Justice Act 1984 overrides this power.

However, the Family Court has a power to permit the disclosure of information about the proceedings either to the public at large or more narrowly, in accordance with rule 12.73 of the Family Procedure Rules 2010. Therefore if any party wants any information from such proceedings to use elsewhere (such as in this case where the GDC wanted to use the information as part of the fitness to practise process), they have to apply to the Family Court for an order allowing specific disclosure.

The principles relating to factors to be taken into account when considering an order for disclosure from family proceedings hearing in private for the purpose of disciplinary proceedings was considered in Re Z (Disclosure to Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 (Fam), where 10 relevant factors to be considered, as set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, were reiterated:

1. The welfare and interests of the child(ren) 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 and the encouragement that is given to people to tell the truth in cases concerning children, with the incentive being that any admission will not be admissible in evidence in a criminal trial.
5. The public interest in the administration of justice.
6. The public interest in the prosecution of serious crime and the punishment of offenders. There is a strong public interest in making available material to the police which is relevant to a criminal trial.
7. The gravity of the alleged offence and the relevance of the evidence to it.
8. The desirability of cooperation between various agencies concerned with the welfare of children.
9. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression.
10. Any other material disclosure which has already taken place.

It has also been emphasised that whether to order disclosure is a fact-specific question that must be exercised in relation to the individual circumstances of each case.

In respect of contempt of Court proceedings brought against a public body, the leading case is JS v Cardiff City Council [2022] EWHC 707 (Admin). Mr Justice Steyn said that when considering whether to initiate contempt of Court proceedings against a public body, it has to be considered whether such proceedings are in the public interest and proportionate, having regard to:

1. Whether compliance with the relevant Court order has been achieved (even if late);
2. Whether an apology for any default has been given; and
3. The extent to which an explanation for any default has been given.

The judgment

Mrs Justice Knowles ultimately decided that some documents should be disclosed to the GDC, applying the factors from Re C above and ruled that the public interest in the GDC having that information warranted such disclosure. She however refused disclosure of some documents, which included information relating to the care proceedings but was not prepared for use within those proceedings. She concluded such information fell within section 12 of the Administration of Justice Act 1960 and as such should not be disclosed.

In respect of the contempt proceedings, both the GDC and Stockport Council had accepted errors had been made in the unlawful disclosure of documents and offered unreserved apologies to the Court and KK. They also confirmed that all documents that had previously been disclosed had been destroyed and systems and training had been put in place to ensure nothing like this happened again. Applying the factors from JS above, Mrs Justice Knowles concluded that contempt proceedings were not warranted for the following reasons:

1. Compliance with the requirements of the relevant rules had now been achieved and the Court had ruled on the principle of disclosure generally. Further, an extensive process of rectification had been undertaken by the GDC and she was satisfied that the GDC now only held disclosure authorised by the Court.
2. Both the GDC and Stockport Council had offered unreserved apologies both to KK and the Court and have put in place measures to ensure such unauthorised disclosure does not occur in the future. Both were also liable for KK’s costs in the proceedings. Neither party acted maliciously in the unlawful disclosure, and it arose out of ignorance from both parties. Contempt proceedings would take up further Court time as well as the resource of two publicly funded bodies and as such, would be disproportionate.
3. Bringing contempt proceedings against named employees of the public bodies would serve no useful purpose.

Comment

This case makes it clear that caution must be had when dealing with information and documents that have arisen from Family Court proceedings, due to their inherent private and confidential nature. By obtaining such information without the proper Court order could result in contempt proceedings against a person individually, as well as their employer.

As Mrs Justice Knowles said “what occurred in this case serves as a salutary warning to local authorities and to other public bodies about the unlawful mishandling of private information before the family court…It is plain that there was a woeful ignorance about the confidential nature of documents produced for the purpose of care proceedings and about how requests for disclosure should be managed. The costs incurred by the GDC and the local authority have been significant and both have been shamed by what occurred. I hope what took place in this case will not happen again.”

However, that is not to say that information and documents will not be ordered to be disclosed. If the Family Court is satisfied that it is in the public interest for such information to be part of fitness to practise proceedings, applying the factors as set out in Re C, it is likely disclosure will be made. Registrants need to therefore understand that what evidence they provide in Family Court proceedings could well be used in fitness to practise proceedings (either for or against them).

If in doubt, advice should be sought from specialist solicitors, who will be able to provide guidance as to the rules and requirements surrounding disclosure of Family Court documents.