A regular affair: The interplay between regulatory proceedings and family law

by Sarah Lucy Cooper, Kerry Anne Currie, family barristers, and Charlotte Mitchell-Dunn, specialist regulatory barrister, Thomas More Chambers

Part 1: the basics

Any family law practitioner well knows that family law does not exist in a world of its own. Litigants generally work and many millions of people who work are regulated in some way – teachers, doctors, judges, the police, healthcare professionals, social workers and senior finance professionals.

So far, so good but why does this matter to family practitioners and why do we need to know about regulatory proceedings? The simple reason is that not only are the findings of a regulator potentially relevant to family proceedings, but there is an increasing tendency for professional regulators to seek information from the family courts to support their own regulatory proceedings, which frequently can encompass conduct in a person’s private life.

As early as 1943, in the case of GMC v Spackman [1943] AC 627 29, the courts were faced with issues of a doctor’s private behaviour (a finding of adultery in a divorce court) being considered relevant to his regulator – the General Medical Council (GMC). The Fitness to Practice panel of the GMC in this case found that by reason of Dr Spackman’s adultery, he was guilty of what they termed “infamous conduct” and the panel proceeded to strike him off – not a likely occurrence nowadays!

The Court of Appeal found that the GMC was not entitled merely to rely on the finding in the Divorce Court and should have allowed Dr Spackman to give evidence in the GMC proceedings, Lord Atkin stating at 637–638:

“It is not disputed that where there has been a trial, at least before a High Court judge, the notes of the evidence at such trial and the judgment of the judge may afford prima facie evidence in support of the charge, for the council are not obliged to hear evidence on oath, but the very conception of prima facie evidence involves the opportunity of controverting it, and I entertain no doubt that the council are bound, if requested, to hear all the evidence that the practitioner charged brings before them to refute the prima facie case made from the previous trial. If this is inconvenient it cannot be helped. It is much more inconvenient that a medical practitioner should be judged guilty of an infamous offence by any other than the statutory body. Convenience and justice are often not on speaking terms.”

Although it is inconceivable that a regulator would today bring proceedings relating solely to a person’s adultery, the boundary determining which aspects of a person’s professional and private life that a regulator will become involved with has become increasingly blurred, with a rise in regulators bringing proceedings in respect of issues such as domestic abuse, sexual misconduct and inappropriate use of social media.

How therefore might regulatory proceedings be relevant to the family court?

Relevance of regulatory proceedings to Children Act proceedings

In relation to Children Act proceedings, findings or allegations of domestic abuse made in regulatory proceedings are likely to be highly relevant. This is due to Practice Direction 12J of the Family Procedural Rules 2010 (PD12J), which compels the Family Court to consider the impact of domestic abuse:

The rationale for these specific rules is set out at FPR PD12J, para 4:

“Domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.”

FPR PD12J at paragraphs 1 and 2 makes it clear that these rules apply across the board to all cases involving children:

“This Practice Direction applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 ….”

Further, as is now well known, the definition of domestic abuse considered by the Family Court is very wide. FPR PD12J lists:

“(3)(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(d) economic abuse (see subsection (4));

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

(4) “Economic abuse” means any behaviour that has a substantial adverse effect on [another person’s] ability to—

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services….

The interpretations section of PD12J makes clear that domestic abuse “includes, but is not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment”.

FPR PD12J, paragraph 5 goes on to compel the Family Court to make appropriate orders such that it will have all the evidence available to it to consider any allegations of domestic abuse:

“The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment … consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must –

- identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
- consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
- give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly…”

To the extent that allegations of domestic abuse or harassment in their widest sense have already been raised and possibly also ruled upon by a set of regulators, this would clearly be relevant to Children Act proceedings and it would be inconceivable that such findings or allegations would be ignored.

Relevance of regulatory proceedings to financial proceedings

In relation to financial proceedings progressing in the Family Court, whether by way of divorce, Trusts of Land disputes on cohabitation, or Schedule 1 Children Act 1989 proceedings, findings or allegations made in regulatory proceedings may also be relevant.

The following circumstances would be particularly likely to trigger an interest in regulatory proceedings:

a case where credibility is seriously at issue, in particular where there has been a finding of dishonesty in the regulatory proceedings
an argument in financial remedy proceedings that the case involves “conduct” as defined at section 25(2)(g) of the Matrimonial Causes Act 1973 and findings about a regulated person’s private life have been made in regulatory proceedings

Relevance of regulatory proceedings to Family Law Act 1996 proceedings

In relation to proceedings in the Family Court brought to obtain some form of civil injunctive relief, eg Non-Molestation or Occupation orders, findings or allegations made in regulatory proceedings may also be relevant. Whilst there is no specific statutory backdrop to domestic abuse proceedings in the absence of there being any child welfare issue, the allegations may well be the very same as those dealt with in the regulatory proceedings (FPR PD 12J of course not applying to a standalone FLA 1996 application).

The basics of regulatory proceedings

What is a regulated profession?

“Regulated profession” is a term defined by the Professional Qualifications Act 2022. It means a profession which is regulated by law in the UK or a part of the UK. “Profession” includes an occupation or trade, or any subdivision and specialism within a profession.

The majority of regulated professions are regulated by statute or byelaws which provide for procedural rules in relation to the disciplinary process. Equally it may be possible that other trade associations will impose on their members rules as to their conduct even if they are not regulated by statute.

The overriding objective

The majority of regulators have an overriding objective which is centred on promoting and maintaining public confidence in the profession, as well as promoting and maintaining proper professional standards and conduct for the individual members of the profession.

As readers of this article are no doubt well aware from their own professional lives, “public confidence” in a profession may reach into private life when the person’s conduct touches on the practice of the profession or the standing of the profession, therefore if the standards of the profession are breached by a person’s actions in their private life, the regulator is likely to become involved.

Inquisitorial proceedings

The vast majority of regulatory bodies’ procedures enable an inquisitorial process, not an adversarial one. The regulator must perform its task so as to reach a correct decision as to the imposition of a penalty and whether decisions reached have due regard for the safety of the public and the reputation of the profession (Council for Regulation of Health Care Professionals v Ruscillo [2005] 1 WLR 717).

Disciplinary panels therefore need to play a very active role to ensure that a case is properly presented, that the charges adequately reflect the real mischief of the case and that the relevant evidence is available (The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council, Ms Winifred Nompumelelo Jozi [2015] EWHC 764 (Admin)).

Burden of proof

It is well recognised that the burden of proof rests on the regulator where the disciplinary committee or tribunal is required to determine issues of fact. If the burden is not discharged to the requisite standard, then the regulator has not proved its case and the allegation in question must be found not proved.

The fact that the practitioner is required to respond to the allegation and that the tribunal examines the practitioner’s explanation does not reverse the burden of proof.

Standard of proof

The civil standard of proof is now almost universally applied in professional conduct proceedings, having historically been a criminal standard of proof. As all family lawyers are well aware, there is only one civil standard of proof in all civil cases, and that is proof that the fact in issue more probably occurred than not. There is no heightened civil standard of proof in particular classes of case. In particular, it is not correct that the more serious the nature of the allegation made – whether in regulatory or family proceedings – the higher the standard of proof required. Whilst the court may take account of inherent probabilities, there is no logical or necessary connection between seriousness and probability. Thus, it is not the case that “the more serious the allegation the more cogent the evidence needed to prove it” (O v Secretary of State for Education [2014] EWHC 22 (Admin) and Byrne v General Medical Council [2021] EWHC 2237 (Admin)).

Tribunal/panel composition

Most regulatory tribunals/panels are made up of a chair, a lay member (or members) and a registrant panel member (or members), and where the chair is not legally qualified, the panel is assisted by a legal adviser/assessor. The composition of the panel depends on the individual regulator and the subject matter of the hearing. Regulatory panels tend to sit with either three or five members in total.

Examples include:

the Medical Practitioners Tribunal Service (MPTS) tribunal – this is usually made up of three people: a legally qualified chair, a lay member, and a medically qualified member
the General Optical Council – an independent hearings panel with a maximum of five people made up of lay and registrant members, assisted by a legal adviser and clinical adviser
the Health and Care Professions Council – a panel formed of a chair, a lay member and a registrant member from the same profession as the registrant, again assisted by a legal assessor
Financial Reporting Council Tribunal – three orfive individuals drawn from a panel of tribunal members

Types of hearing

Most regulators will have different types of hearing listed to deal with the different stages of proceedings and differing issues which arise in the fitness to practice arena. Examples of these hearings include:

Interim Order hearings
Interim Order reviews
Substantive Fitness to Practice hearings
Health Committee hearings
Registration Appeals
Restoration Hearings
Substantive Order review hearings
Consent Order hearings

Substantive Fitness to Practice Hearings

The majority of regulators divide the hearing process into three stages, namely:

(i) facts, (ii) grounds and impairment, and (iii) sanction.

Misconduct

Due to the nature of the Fitness to Practice cases which touch upon a person’s private life or behaviour, such cases will involve allegations of “misconduct”.

There is no statutory definition of misconduct but Lord Clyde in the case of Roylance v General Medical Council (No 2) [2000] 1 AC 311 stated that:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the conduct to the profession. Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious…”

There has been an increased prevalence of cases involving misconduct that originates from a professional’s private life. This is due to the impact that a person’s actions, in their private life, may have on public confidence and the public’s perception of the profession. This is particularly so among regulators that regulate professionals who interact with the public and vulnerable members of society. In cases, for example, where the professional may have safeguarding obligations in a professional capacity, it is easy to see how issues such as abuse, violence or emotional harm in a domestic setting may become relevant to a person’s professional life.

Available sanctions

Most regulators have the following available sanctions, though they may have differing terminology:

Taking no further action
Caution
Imposing conditions of practice
Suspending the professional
Striking off/Removal order/Disbarring

Procedural rules during the disciplinary hearing – special measures

The majority of regulatory proceedings will have detailed provisions for dealing with witnesses and the evidence of witnesses. These will often include directions as to special measures for vulnerable witnesses.

Family lawyers may be surprised to know just how comprehensive the special measures offered within regulatory proceedings are. They include:

using screens to block the view of the registrant
turning off cameras during remote hearings
using interpreters or signers
pre-recording evidence
hearing evidence in private
instruction of support advocates and/or communication intermediaries

Some regulators within certain types of case also provide for a mechanism to prevent unrepresented registrant’s cross-examining a complainant. These include Social Work England’s rules which state in cases of a sexual nature, an unrepresented social worker cannot cross-examine an alleged victim unless the alleged victim agrees to this (in writing) before the hearing (Fitness to Practise Rules 2019 (as amended), rule 42).

The Nursing and Midwifery Council (NMC) Rules (23(4)) also require the NMC to appoint special counsel to conduct cross-examination when a person giving evidence has made allegations of a sexual nature directed at them against a nurse, midwife or nursing associate who is representing themselves. The NMC can also appoint special counsel in other circumstances where this would be a reasonable measure to support the person; for example, for the cross-examination of a person who alleges the nurse, midwife or nursing associate has physically or emotionally abused them where the nurse, midwife or nursing associate is representing themselves.

Likely penalties in regulatory proceedings for domestic abuse

Family lawyers also need to understand the spectrum of likely penalties imposed by a regulator for domestic abuse findings. In particular, for those practising in financial remedies, how this might impact on earning capacity.

Examples include Ibrahim v General Medical Council [2022] EWHC 2936 (Admin), where the High Court upheld a sanction of erasure following convictions for assault by beating on the appellant’s wife. The assault involved the appellant pouring a jug of hot water over his wife, before pulling her by the hair towards and down the stairs and kicking her legs and back. All this took place in the presence of their four-year-old son. The appellant was sentenced to (a) a 12-month community order with a programme requirement and a rehabilitation activity requirement, (b) a restraining order and (c) a fine and order for costs.

The GMC commenced an enquiry pursuant to its regulatory procedures as the appellant had made a self-referral to the GMC, the obligation to self-refer after a criminal conviction being a very common obligation in professional disciplinary codes of conduct.

The appellant’s wife provided oral evidence to the GMC to a large extent covering the same ground as her victim impact assessment evidence. The allegations and evidence before the Fitness to Practice Panel explored, and the Panel found, a far more extensive picture of violence than the conviction. In addition to the conviction, the allegations which the appellant faced included allegations of misconduct between 2013 and 2019 of physical and verbal assaults on his wife. The Panel found that the appellant had engaged in a course of abusive behaviour towards Ms A, including violence, verbal threats and coercive behaviour that spanned several years. As a result, the fitness to practice panel found misconduct, current impairment and imposed the sanction of erasure from the medical register.

The consequences for assaults stand in contrast to the earlier case of Khan v General Pharmaceutical Council www.supremecourt.uk/cases/uksc-2014-0214 in which the UKSC upheld a suspension for a course of domestic assaults by a pharmacist including breaches of injunctions and criminal damage. Strike off in that case was deemed disproportionate, but this case is now 11 years old.

Part 2: Information exchange between regulatory institutions and the Family Courts

Having considered the basic outline of regulatory proceedings and why family lawyers need to have a healthy appreciation of what goes on in regulatory proceedings, Part 2 of this article now deals with the more vexed question as to the exchange of information and evidence as between Family Courts and regulatory tribunals.

This is dealt with in two parts: firstly, the more difficult issue of regulatory institutions seeking information and evidence from the Family Courts and secondly, Family Courts seeking information from the regulatory institutions. In relation to each section this article will also deal with the procedural requirements as well as issues of admissibility.

Disclosure from the Family Courts to regulatory institutions

As all family lawyers are aware, information and material relating to any family proceedings is closely guarded by the Family Court. Whilst there are clear rules in relation to confidentiality of Children Act proceedings, the position in relation to financial remedy proceedings or applications pursuant to the Family Law Act 1996 is rather more opaque.

Confidentiality in relation to Children Act proceedings

The Administration of Justice Act 1960 at section 12 states:

“Publication of information relating to proceedings in private.

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor…”

Practice Direction 12G (PD12G) sets out what can be disclosed to a non-party without a specific order of the court in respect of any proceedings involving children. The FPR at r12.73 emphasises:

“Communication of information: general

12.73

(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –

(a) where the communication is to–

(i) a party;

(ii) the legal representative of a party;

(iii) a professional legal adviser;

(iv) an officer of the service or a Welsh family proceedings officer;

(v) the welfare officer;

(vi) the Director of Legal Aid Casework (within the meaning of section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012);

(vii) an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;

(viii) a professional acting in furtherance of the protection of children;

(ix) an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

(b) where the court gives permission, including as provided for under rule 12.73A; or

(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.

(3) Nothing in rule 12.75 and Practice Direction 12G permits the disclosure of an unapproved draft judgment handed down by any court.”

In adoption, placement or related proceedings, the equivalent rule is r14.14(a) FPR 2010. In addition, do not overlook Practice Direction 14E, which additionally permits limited disclosure of a judgment to the General Medical Council for the purpose of making a complaint and is limited to proceedings for adoption, placement and related proceedings.

Confidentiality in financial remedy proceedings and other family proceedings not involving children

In relation to financial remedy proceedings there is limited guidance. FPR r9.46 says:

“(1) For the purposes of the law relating to contempt of court, information from financial remedy proceedings may be communicated in accordance with Practice Direction 9B.
(2) Paragraph (1) is subject to any direction of the court.
(3) Nothing in this rule permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.”

Importantly, at FPR 29.12 “Miscellaneous” there is a general prohibition on disclosing documents lodged at court without the court’s permission, which of course any party may seek:

“(1) Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission.”

Further, Rule 22.20 adds a further protection in relation to witness statements in some proceedings:

“(1) This rule applies to proceedings under Part 7 (matrimonial and civil partnership proceedings) or Part 9 (financial remedies).

(2) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(3) Paragraph (2) does not apply if and to the extent that–

(a) the court gives permission for some other use; or

(b) the witness statement has been put in evidence at a hearing held in public.”

In addition there is a general duty for any litigant to keep confidential any documents disclosed to them by another party within litigation, ie not to use them for a collateral purpose – see Clibbery v Allan [2001] 2 FLR 819.

Why do regulators need to obtain disclosure from the family courts?

The key case is Ruscillo v Council for the Regulation of HCP [2004] EWCA Civ 1356. At paragraph 80 the Court of Appeal stated:

“The procedures for disciplinary proceedings under the various statutes referred to in section 29(1) of the Act are not identical. In general they involve a preliminary investigation of conduct of the practitioner of which complaint has been made. If it is decided to bring disciplinary proceedings, a charge will be proffered which alleges the facts relied upon as demonstrating professional misconduct. Admissions may be made by the practitioner, facts may be agreed and evidence may be called. The disciplinary tribunal will be faced with an act or omission, or more typically a course of conduct, which it is alleged constitutes professional misconduct. The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.”

This comment emphasises the quasi-inquisitorial role that any regulator must play. There is a clear obligation on a regulatory tribunal, given that regulatory proceedings include considerations of the protection of the public, actively to search out all material evidence. Equally, given that all the material from the Family Court is likely to be admissible in the regulatory proceedings (as to which see below) there is every reason for it to be sought out by regulatory institutions.

How should regulators obtain disclosure from the Family Courts?

As is now clear given the confidentiality considerations above, regardless of the type of family proceedings, any regulator seeking any information from the Family Court must apply to the Family Court, not least as the Practice Directions permitting limited disclosure only apply to parties and not to non-parties. If the application is made within existing or concluded financial proceedings, the Part 18 procedure under FPR 2010 applies. As to the form to be used, Form D11 is the relevant form where the application is made in the course of or in connection with proceedings under Part 9, ie financial remedy proceedings.

Form C2 is to be used for any application for disclosure within existing or concluded children proceedings. Where it is unclear what family proceedings the application relates to, Form FP2 is to be used “in any other case” (Practice Direction 5A, FPR 2010).

When regulators get it wrong

The case of PSA v NMC and X [2018] EWHC 70 (Admin) is an unfortunate case in which the Nursing and Midwifery Council (NMC) failed to consider the law in relation to how to obtain material from family proceedings. A decision of the NMC was subject to an appeal by the Professional Standards Authority (PSA) for Health and Social Care, which is the umbrella organisation and a “super regulator” for 10 regulators working in the health sector. The basis of the PSA appeal was that the NMC wrongly declined to pursue allegations that a Registrant nurse was responsible for non-accidental injuries to her son, Baby A, and/or that she failed to protect Baby A from harm.

By way of background, within care proceedings the nurse and her partner were found, after a 12-day hearing, to be potentially responsible for Baby A’s injuries and to have failed to protect Baby A. There was also a psychological report of the nurse within those proceedings which raised issues as to her fitness to practise. A police investigation was conducted albeit the police decided that there was insufficient evidence to pursue a criminal case against the nurse. In the meantime, the NMC commenced a regulatory investigation having been informed of the issues by the nurse’s employer.

The NMC, for reasons which are entirely unclear, opted not to make an application to the Family Court but instead merely wrote to the Family Court requesting a transcript of the hearing, a copy of the judgment and a copy of the psychological assessment of the nurse. Entirely unsurprisingly, the Family Court wrote to the NMC advising them that the documentation requested was confidential and that an application ought to be submitted with supporting arguments. However, the NMC never made any application to the Family Court. The NMC then prepared an investigation report advising that despite “attempts”, the Family Court had refused to release the requested documentation unless it had the consent of all parties. As family lawyers know this is not a statement of the law and, in addition, in fact the NMC had made no attempt to obtain the parties’ consent. As a result of this incorrect advice and information, the NMC Case Examiners determined there was no case to answer as they had very minimal information.

Mrs Justice Laing stated:

“I nonetheless record my unease at the superficial approach which the NMC took to gathering evidence. The NMC recognised that evidence about the proceedings in the Family Court was relevant, but took no proper steps to get that evidence. It simply gave up when it received HMCTS’s reply to its inquiry, and then, wrongly, decided that it would be disproportionate to do more. It does not seem to have considered whether it could get relevant and more direct evidence to support the allegation from other sources, such as from the various medical professionals who had dealt with the case. I consider that such an approach does not in any way recognise the public interest in the thorough investigation of allegations of misconduct by registrants, and the need to maintain public confidence by investigating such allegations properly. The NMC has express powers to require evidence, and they have been given to the NMC to enable it to investigate allegations properly.”

If only the NMC had taken advice from a family lawyer!

Sadly, however, there was to be another serious case raising issues of contempt of court in General Dental Council v KK & Stockport MBC [2024] EWHC 3053 in which Mrs Justice Knowles stated: “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.”

In January 2019 the General Dental Council (GDC) received an anonymous tip off that KK (a dental technician) was the subject of a police investigation for very serious domestic abuse. The GDC contacted the police who in turn referred the GDC to the local authority – Stockport MBC. Quite wrongly, GDC then made a request for documents directly from Stockport MBC who disclosed various documents to the GDC from the Family Court.

A few months later findings were made against KK in relation to domestic abuse in the context of care proceedings. No application in the Family Court was made for disclosure of any material, and the Family Court did not initiate any referral to the GDC.

Following the Family Court hearing the GDC wrongly sought permission from Stockport MBC to disclose to the GDC interim disciplinary panel the documents it had already wrongly been given by Stockport MBC. Material from the care proceedings therefore came to be used in the fitness to practice proceedings.

Whilst initially no objection to this material being used in the regulatory proceedings was raised by KK, at a subsequent hearing the issue of whether the GDC was relying on improperly disclosed material was considered and the regulatory proceedings were adjourned. Further disclosure was wrongly given by Stockport MBC and an email request for disclosure but no formal application was eventually made to the Family Court, triggering an invitation by the Family Court for an application to be made.

Finally, an application for disclosure was belatedly made to the Family Court by GDC pursuant to FPR r12.73. Given the seriousness of this issue, the proceedings were transferred to the Family Division of the High Court, which made it clear that the Court would consider whether proceedings for contempt of court should also be initiated.

Knowles J noted at paragraph 9:

“s33B(2) of the 1984 [Dentists] Act provides that 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. The failure to comply with such a request within 14 days may result in the GDC applying for an order in the County Court requiring the information to be supplied and for all the documents to be produced. However, the powers under s. 33B of the 1984 Act have 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’.”

It is therefore beyond clear that the GDC has no statutory powers which could override its clear obligations under s12 Administration of Justice Act 1970 and FPR r12 and PD12G.

The judge stated [para 50]: “It remains important that barriers are not erected between the family court and fitness to practise procedures created by statute… Furthermore, it continues to be desirable for the various agencies concerned with the welfare of children to co-operate with each other, including not only social workers but also allied medical and healthcare professionals such as doctors and dentists.”

Finally, the judge considered whether, in the absence of KK issuing proceedings for contempt of court, the court should initiate such contempt proceedings. Fortunately for the GDC and Stockport MBC, the judge decided that the apologies and actions to rectify the breaches were sufficient. The judge did though send out this warning for any future cases:

“The contents of this judgment stand as a salutary warning to local authorities and to other public bodies concerned with fitness to practise in occupations concerned with or touching on the welfare of children. 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.”

Part 3: disclosure and admissibility of evidence

The principles upon which the Family Court will permit disclosure to a regulator

Disclosure from Children Act proceedings

In relation to private or public Children Act cases, the key case is Re Z (Disclosure to Social Work England: Findings of domestic abuse) [2023] EWHC 447 (Fam), which is required reading for any suggestion of disclosure from Children Act proceedings in the Family Court to a third party.

In this case Z’s father was a senior social worker, working with vulnerable adults. At a fact finding in private law proceedings serious findings of domestic abuse were made, namely that he had broken the mother’s hand causing permanent disability, verbally abused the mother in front of Z, and generally behaved in a threatening, intimidating and coercive manner towards her. In the meantime, Social Work England (SWE) had received an online referral about the father’s conduct and had started an investigation. During the investigation SWE correctly applied for disclosure of the judgment from the Family Court fact-finding hearing, albeit SWE was wrongly not permitted by the first instance judge to make any submissions on its application. The mother’s position initially was to oppose such disclosure as she was aware that it would clearly impact on the father’s earning capacity and therefore the child maintenance, albeit she eventually became supportive of the SWE application. Despite the mother supporting the disclosure, SWE’s application was refused by the trial judge. The mother appealed and SWE supported her appeal.

The Court approved the 10-stage test set out by the Court of Appeal in Re C (Disclosure of material) [cited as Re EC (Disclosure of material) [1996] 2 FLR 725], namely:

“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’s 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.”

In addition, Mrs Justice Knowles went on to state [para 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 the Human 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.’”

Knowles J also set out some observations to help judges facing these applications which are becoming increasingly common as regulators have become more interested in their registrants’ domestic conduct. She suggested that where a party to the family proceedings works with vulnerable adults or children, the court and not a party should take responsibility for considering whether to disclose its findings to the regulator, who should then be invited to intervene.

Disclosure from financial remedy proceedings and FLA applications in cases not impacted by the Children Act

In proceedings concerning finances, unsurprisingly the case law on disclosure of information to outside public bodies has mostly concerned the release of documents to HMRC. These cases make clear that information disclosed in court might be disclosed to a third party if that disclosure is in the public interest. Furthermore, any material which has caused the court to be satisfied that tax evasion, or other illegal or unlawful conduct, has taken place, should be disclosed to the appropriate public authority, unless there is a compelling public interest to the contrary. See A v A; B v B [2000] 1 FLR 701, where Charles J said:

“whilst recognising the point I have made earlier that all the circumstances of each case should be taken into account, and thus the danger of generalisations, I would go further and state that when a court is satisfied that there has been illegal or unlawful conduct and it has no power similar to that of the criminal court, or the relevant public authority, to deal with such conduct it should generally report the relevant material to the relevant public authority.’ [739E]

Two historical cases in which HMRC sought disclosure of documents from FR proceedings both failed however: S v S (Inland Revenue: Tax evasion) [1997] 2 FLR 774 and HMRC v Charman [2012] EWHC 1448 (Fam), [2012] 2 FLR 1119, where Coleridge J suggested that the power to disclose should be used “exceptionally rarely and for very good reason”.

To date, there do not seem to be many applications for disclosure by regulators from financial remedy proceedings.

One rare case involving the suggestion that a regulator should receive disclosure of documents from financial remedy proceedings is Y v Z (Disclosure to police and Financial Conduct Authority: Publicity) [2014] 2 FLR 1311. Notably, the application was not made by the regulator but by the mother, and rather unsatisfactorily, the regulator played no part at all in the hearing.

In this case the court was asked by the mother for permission to release to the Financial Conduct Authority (FCA), as well as to the police, various documents produced by the father in Schedule 1 proceedings. The mother sought to show the police and the FCA that the father had lied in his statements and on oath in the Schedule 1 proceedings. The father worked in the financial services sector and was CEO and executive chairman of a company registered with the then FSA. It was the mother’s argument, amongst others, that the FCA should be entitled to investigate the father’s suitability for continued regulation.

In determining the appeal, the court reminded itself that on the question of whether confidential information provided in those proceedings should be disclosed, either to the police or the FCA, a balancing exercise had to be conducted as between, on the one hand the rights and interests of the parties as between themselves, and on the other, the public interest.

“[29] As between the parties, it has to be said that the mother appears to be so preoccupied with her own sense of grievance (to which the father’s attitude and conduct here contributed) as to be overlooking or not caring about the risk to her budget if she were to disclose the father’s lies to the police and the FCA. Her suggestion to me that the loss of £12,000 pa into her household would not matter, when she is on benefits and with a small amount of dwindling capital, does not bear examination. It demonstrates that her single-minded determination to have the father punished has overridden her willingness or ability to give due weight to [the child’s] best interests.

…

[31] Clearly there are family cases where the process uncovers and the court makes findings about things so serious that a disclosure does have to be made in the public interest: for example, where findings are made as to the perpetration of a child death; or where (say) a party who is a serving policeman is found to be corrupt; or where a party who works with children is proved to be a paedophile. Weighed up within the decision to disclose is always the question of proportionality, as to which every case is different and fact-specific. It was not established here, nor could it have been, that the father had for example been falsifying the accounts of his business, or committing defalcations with his client’s money. What he was found to have done was to have failed to give full and frank disclosure and to have lied about his resources in the fact-specific situation of a relationship which had become bitter and acrimonious and in the context of which, most discreditably, he did not wish to have to pay to the mother for the benefit of his child any more than he could possibly avoid. This is in no way at all to excuse his conduct, which was inexcusable, greedy and unfair; but it is to put what he did in its context. Was it sufficiently connected to his business affairs and would it be proportionate to permit the intended disclosures, given the downsides in terms of the threat to [the child’s] financial support?”

In MC v FS (No. 2: Costs and ancillary issues) [2020] All ER (D) 201 (Feb) the Court also considered whether a copy of the Court’s judgment in financial remedy proceedings should be disclosed to the wife’s professional regulatory body, as well as the police and the CPS. The wife, an accountant, was found by the Court to have committed fraud which the husband argued made her a danger to the public. After considering the various authorities referred to above, perhaps surprisingly, the Court again declined to direct disclosure to third parties, concluding:

“[42] In striking a balance between the competing interests in this case I consider that this is a case where the wrongdoing and ‘loss’ can reasonably enough be remedied within the family proceedings themselves and that this is not outweighed by any wider public interest. No third parties were affected by W’s actions. I reject the submission that W is in some way ‘dangerous to the public’ and/or a ‘potential danger to her community’. I also take into account the question of proportionality which includes the fact that I have not set aside the Decree Absolute. Although W has not made any apology I do not consider that in this case this detracts from (as described by Charles J in A v A; B v B) the ‘general practice… pursuant to which the court does not report the matter to the prosecuting authorities’ particularly because the wrongdoing is not ‘external’ to the case. Further I take into account that this was an issue I raised to which H is said to ‘consent’ rather than it being an application that was made on his behalf.”

Tying the various threads together, in summary the position relating to disclosure from financial proceedings is that:

It has always been the case that confidential information disclosed in proceedings might be disclosed to third parties if that disclosure was in the public interest (A v A; B v B [2000] 1 FLR 701).
The test is a balancing exercise of competing considerations to be weighed on the facts of each individual case.
There must be very good reason to disclose and the fact that the evidence may be relevant or useful is not by itself a good enough reason HMRC v Charman & Charman [2012] 2 FLR 1119.
Non-disclosures and lies which by their nature cannot be reasonably well remedied within the family proceedings may generally be seen as more likely to lead to disclosure to outside agencies Y v Z (Disclosure to police and Financial Conduct Authority: Publicity) [2014] 2 FLR 1311.

Admissibility of evidence obtained from Family Court into regulatory proceedings

The rules of the majority of regulators allow for great flexibility with regard to the admission of evidence from a multitude of sources. The majority of regulators will allow evidence to be adduced as long as it meets the test of relevance and fairness.

In her Fifth Shipman Inquiry Report, Dame Janet Smith recommended that hearsay evidence should be more readily admissible in disciplinary proceedings than in proceedings before a court of law. This is reflected in the rules of many professional bodies, but the decision to admit hearsay evidence must still be fair.

A finding in civil proceedings is not irrebuttable but it provides a strong prima facie case, which throws a heavy burden on the practitioner who seeks to deny the findings of the civil court.

However strong the findings in the civil court, they are essentially background, and the disciplinary tribunal cannot abrogate its responsibility to adjudicate on the charge or charges before it (Constantinides v Law Society [2006] EWHC 725 (Admin)).

Towuaghantse v GMC [2021] EWHC 681 (Admin)

Here, Mostyn J said he did not even have to grapple with the issue of how the opinion of another judicial officeholder was admissible, because the rule relating to that “has long been held not to apply to inquisitorial proceedings” and “regulatory proceedings… are quintessentially inquisitorial”. He stated it was put beyond doubt by Rule 34(1) of the GMC (FTP) Rules 2004 where it says that the Tribunal may admit any relevant and fair evidence “whether or not such evidence would be admissible in a court of law.

Disclosure from regulatory institutions to the Family Court

How can the Family Court obtain evidence from regulatory proceedings

Most regulators have the ability to share information about a registrant’s fitness to practise, if they consider it is in the public interest. Some Regulators, such as the GMC, are required prior to doing so to inform the Registrant concerned and provide an opportunity for objections.

In deciding whether to use their disclosure powers, regulators will consider the overarching objective, which is the protection of the public. This includes protecting, promoting and maintaining public confidence in the professions and promoting and maintaining proper professional standards and conduct for those professionals. The overriding objective is then balanced against the Registrant’s right to privacy and their other legal rights more generally.

The sharing of the information must therefore fulfil an important purpose that outweighs or overrides the Registrant’s privacy rights.

Most regulators have confirmed that they will share information with other organisations who are responsible for safeguarding children or vulnerable adults, or who may be involved in patient safety investigations, or in preventing or detecting criminal activity. Therefore, a number of regulators already have in place information-sharing agreements with agencies such as the police and the CPS, however there are currently no such sharing agreements or protocols in place between regulators and the Family Courts – perhaps this is an area ripe for consideration.

In respect of a request for information – by way of correspondence or a formal Subject Access Request – the regulator would consider the request in line with its data-sharing policy or procedures. Where a request for personal data places a legal obligation on the regulator to provide the information requested, provided the request is valid, regulators will ordinarily disclose the minimum amount of data necessary to ensure that they have met their legal obligation.

In any event regulators regularly publish fitness to practice proceedings outcomes and generally provide such outcomes to the person who made the allegation, as well as witnesses and anyone who has been affected by the concern they have investigated (such as patients and their families). This may mean that certain fitness to practice information will already be available to parties in the Family Court proceedings.

Parties also have the ability to make their own request to the regulator to share information, however the decision as to whether to disclose this information again requires an assessment of the public interest, including considering whether it is required to satisfy open justice principles balanced against any potential adverse impact on the proceedings. Regulators will therefore need to consider carefully the privacy implications of sharing such information in line with their policies and procedures.

In relation to an application for third-party disclosure made by the Family Court pursuant to FPR 2010 r21.2, an order can of course be made against any regulator.

FPR 2010 r21.3(1) provides that: “A person may apply, without notice, for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the public interest.” The rule sets out in detail how such an application should be made, including setting out the right or duty which is said to be affected by the third-party disclosure.

Admissibility of evidence obtained from regulatory proceedings into the Family Court

The Family Court in general will admit documents from a variety of sources without recourse to strict hearsay rules.

In relation to the rules on admissibility into the Family Court, they are set out at FPR Part 23 and the Civil Evidence Act 1995. Pursuant to FPR 2010 r23.2(1), a party who intends to rely on hearsay evidence at the final hearing in the Family Court and that evidence is to be given either by a witness giving oral evidence or is contained in a witness statement of a person not being called to give evidence, that party complies with s2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s directions. In all other cases, pursuant to FPR 2010 r23.3 the party must serve a notice on the other parties identifying the hearsay evidence, stating that the party intends to rely on the hearsay evidence and explaining why the witness giving that evidence will not be called.

In relation to issues in respect of children, the rules on admissibility are even wider by virtue of the Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, which provides that “evidence given in connection with the upbringing, maintenance or welfare of a child shall be admissible notwithstanding any rule of law relating to hearsay”.

The weight to be given to hearsay evidence is a matter for the court but, pursuant to s4 Civil Evidence Act 1995, it must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular to whether:

(a) it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(d) any person involved had any motive to conceal or misrepresent matters;

(e) the original statement was an edited account, or was made in collaboration with another or for a particular purpose; and

(f) the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight

As to an argument that findings from a regulatory tribunal may have created an estoppel, this is a very complex issue but it would appear to be particularly unlikely in the context of any Children Act proceedings given their inquisitorial nature and that a regulatory tribunal is highly unlikely to be a court of competent jurisdiction.

The Court of Appeal in W-A (Children: Foreign conviction) [2022] EWCA Civ 1118; [2023] Fam 139, a case concerning the admissibility of foreign convictions in care proceedings, affirmed the flexibility of the evidentiary rules in family proceedings as compared with other types of civil proceedings, as well as the wider discretion afforded to the court over the admissibility of evidence. Jackson LJ characterises children proceedings as “inquisitorial in nature” at [16], and states at [20] that owing to the different rights and interests at stake, and the central role of welfare in the family courts, “strict evidentiary rules such as res inter alios acta, estoppel and the rule in Hollington v Hewthorn have never applied”.

Though not explicitly referring to other jurisdictions, Jackson LJ also notes at [18] that it is “settled law in family proceedings that the findings of previous tribunals may be admitted in evidence and that the court will give such weight to the earlier finding as it considers appropriate in the circumstances of the case, while remaining alert to the need for fairness to all parties in the procedure it adopts.”

This very much chimes with the approach taken in Re B (Minors) (Care proceedings: Issue estoppel) [1997] 2 All ER 29. Whilst concluding at [39] that there is no “strict rule of issue estoppel which is binding upon any of the parties in children’s cases”, Hale J suggested that “the court undoubtedly has a discretion as to how the inquiry before it is to be conducted” and “may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of issue estoppel would not cover them.” Hale J then identifies several factors to be considered by the court when deciding whether to allow an issue of fact to be determined afresh, including the public interest in an end to litigation, the extent to which a delay in determining the case would be prejudicial to the interests of the child concerned, the potential detriment to the child’s welfare by relying on an erroneous determination of fact, and whether there was any reason to think that a rehearing would lead to a substantially different outcome.

Conclusion

As regulators become more interested in the “private lives” of registrants, it is inevitable that the crossover between the Family Court and regulatory proceedings will grow wider and deeper. Tread carefully!

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