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Family Court Orders and disclosure to the DWP
I have a client who is a UC claimant with a 3 Children, 2 his own children and one (initially believed to be) a foster child. There been a significant delay in paying any child element, which has been subject to MR.
However following the MR it has come to light the child is subject to a special guardianship order, with the client not understanding the distinction between the two. This change things slightly - with the SGO child being eligible for a child element.
I have a copy of the court order- however can I disclose this to the DWP with out permission of the family court?
S97 of Children Act 1989 says orders can’t be *publicly* disclosed. Administration of Justice Act 1960 s12 seems more restrictive.
Am I going to have to rely on other evidence of there being an SGO?
I do wonder what purpose an SGO has if not to demonstrate to authorities that a person has parental responsibility for a child…
The explanatory memorandum for s97 (as amended) says:
the publication of material from family proceedings which is intended, or likely, to identify any child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public. This [amendment] will make the effect of section 97 less prohibitive by allowing disclosure of such information in certain circumstances. In effect, this means that passing on information identifying, or likely to identify, a child (his school or his address) as being involved in court proceedings to an individual or a number of individuals would not generally be a criminal offence.
Is that helpful at all?
Not my area, but doesn’t s97(2) of the Children’s Act cease to have effect once proceedings are concluded?
And s12(2) of the 1960 Act only makes publication of the court order itself to be contempt if the court expressly prohibits the publication, which I guess would be pretty unusual for an SGO. Did it do so? (and if there was such a prohibition, has your client breached it by sharing the order with you??)
There may still be issues with HRA article 8 (protection of privacy) balanced with e.g. article 10, I don’t know how likely they are to arise in these circs.
I think these points are reflected in this guidance, which draws a distinction between what is allowed during the proceedings, and then afterwards:
https://www.gov.uk/guidance/sharing-information-outside-of-court-in-family-proceedings#what-you-can-share-about-a-case
If you’re really concerned, is there a particular barrier on seeking the court’s permission?
Edit: not saying this is necessarily correct, but I suspect most advisors wouldn’t have given this issue a second thought before disclosing to DWP, provided that the parent had consented to the disclosure (or the child did, if they were mature enough to understand the issues).
[ Edited: 17 Jun 2024 at 09:13 pm by JonUCN ]Although a housing case, and relating to disclosure of a CAFCASS report, the Lord Justices in Querino v Cambridge City Council (Rev1) [2024] EWCA Civ 314 summarise some of the principles that may apply here -
‘The confidentiality of children involved in proceedings under CA 1989 is protected by section 12 of the Administration of Justice Act 1960 (“AJA 1960”). That provides that the publication of information relating to proceedings before any Court sitting in private (as the Court normally does when hearing CA 1989 matters – see rule 27.10 of the Family Procedure Rules (“the FPR”)) shall not of itself be a contempt of Court except where, among other things, “the proceedings … are brought under the Children Act 1989”. Unless the Court expressly prohibits this, publication of an order made by a Court sitting in private will not be objectionable (see section 12(2) of AJA 1960). Further, the dissemination of information can be authorised by rules of Court (see section 12(4) of AJA 1960), and chapter 7 of the FPR allows information relating to proceedings held in private to be communicated where the Court gives permission and in certain other specified circumstances. However, “a disclosure of information that falls within s 12(1) AJA which is not authorised by the FPR or by an order of the court may be a contempt of court”: see Griffiths v Tickle [2022] EWCA Civ 465, [2022] 2 FLR 879, at paragraph 7, per Warby LJ. Moreover, the general bar extends to “the publication of accounts of what has gone on in front of the judge, and the publication of documents such as transcripts of judgments, witness statements, reports, position statements, skeleton documents [and] other documents filed in the proceedings”: see Griffiths v Tickle [2021] EWCA Civ 1882, [2022] EMLR 11, at paragraph 43, per Dame Victoria Sharp P, giving the judgment of the Court.’ (paragraph 25 )
See also our summary of the case.
I asked a friendly family barrister I follow on twitter Lucy Reed and she’s advised the following:
s12(2) AJA ’60: w/o prejudice 2 the foregoing subsection, the public’n of the text or a summary of the whole or part of an order made by a ct sitting in private shall not of itself be contempt of ct except where the court (having power to do so) expressly prohibits the public’n…
BUT many orders these days have daft (inaccurate) recitals purporting to limit sharing. Of questionable legal effect as they purport to describe s12. So specific order needs checking.
For the purposes of s12 ‘publication’ is v wide - as per defamation sense (Kent CC v B 2004)…
…s97 not a problem because there ‘publication’ is only relevant if to the public a section of the public at large. And only applies during proceedings (if there is an SGO already probably doesn’t apply at all).
But also…
https://justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12g PD12G permits disclosure for Child Maintenance purposes. Does not cover DWP specifically though.
If in doubt C2 app for permission to disclose, which court can give under FPR 12.73.
Can’t say what the answer is without seeing the specific order but in general should be fine. And in practice happens all the time.