We have recently seen a steep increase in our school and academy clients receiving requests from family courts for information about their pupils.
In one case this was despite the circumstances where the pupil had left school some years before, but they still retained very sensitive safeguarding records about the individual. This record also contained many references to identities about other pupils, friends, allegations and distressing reports involving other children. It is a challenging position for any organisation to find themselves in.
The family justice system exists to help families resolve disputes arising in respect of family matters and hopefully with the minimum of disruption to those involved. Under the Children Act 1989 the court has jurisdiction to make ‘child arrangement orders’ in proceedings between the parents of a child where the parents do not agree on issues such as with whom the child should live, how much contact should take place, which school the child should go to or whether they can move to live abroad with one of their parents. The cases can also involve grandparents and other relatives. The court can make orders in proceedings between a local authority, the parents of the child and the child, placing the child under the supervision of the local authority or placing the child in the care of the local authority.
These orders are made to protect the child where the child has suffered, or is at risk of suffering, significant harm. Before making such orders, the court must be satisfied that they are in the child’s best interests and are necessary and proportionate.
In order to achieve this, it is generally a judge who decides the case after hearing evidence from each party and the submissions made by the parties’ Counsel or solicitors, or the parties (usually parents or the Local Authority) themselves.
The judge will then make a decision based on the evidence heard and the law that applies to the case. When making a decision the judge will always put the children’s welfare first.
Increasingly schools and academies are being instructed to disclose personal data in Family Court cases, often with very little notice.
In these cases, a child’s welfare and safety must remain the school’s primary concern and schools should strive to be impartial to avoid appearing to support one party over another.
When supporting our clients, we routinely manage these requests on their behalf.
Our first task is to carefully read through the Court order. They are usually quite specific, i.e. records of safeguard entries concerning X. However, there may be additional instructions, for example “No redaction is allowed unless the Court agrees”. This can cause a host of issues for the school as they balance between complying with the Court order and their legal Data Protection compliance regarding other individuals in the record. This is especially so where the content is very sensitive, i.e. where records refer to potential (or actual) child sexual exploitation concerns.
In most cases Court orders simply override usual data protection and safeguarding duties, but inevitably those records will include third-party details, for example the names of other pupils, parents or staff who are unconnected to the current proceedings.
We are also mindful of previous instances where such disclosures to the Court have been inadvertently disclosed.
Papers and evidence involving Court proceedings are normally securely stored and transmitted and usually withheld or maybe redacted or anonymised within the Court system so as to prevent information about one of the parties, or third-parties, from being accidentally leaked.
However, the HM Courts and Tribunals Service (HMCTS) are not immune from data breaches and careless handling of court information. Their annual report for 2024 revealed that the number of ‘Personal data related incidents’ involving Court proceedings had significantly increased. 11,395 data incidents were reported during 2024-25, a year-on-year increase of 7%.
In September 2024 a confidential address of an applicant to a respondent in a family Court case was disclosed in error, and in 2023 the ICO investigated a case where a Judge had ordered that a biological father was not to take part in the proceedings as he posed a risk to the family concerned. Notwithstanding this order, the Court failed to update its system accordingly and he was sent details of the parties involved. The ICO found that the Family Court was responsible for a data breach when its system failed to update and they sent sensitive case details to the wrong person.
And in 2021 solicitors representing two children in relation to step-parent adoption proceedings at the family court mistakenly disclosed reports containing personal data which were prepared for the court by social workers to one of the birth parents. The ICO reprimanded the solicitors and issued ‘recommendations’ to improve its compliance with the UK GDPR including that they should review their redaction policy.
These breaches aside, schools will need to deal with the Court Orders diligently, often within a quickly dissolving timescale.
If ordered to disclose records, you should still consider whether you need to redact information to protect third-party details, for example the names of other pupils or parents.
Depending on the circumstances of the case this could be deemed necessary to protect identities or personal data involving children or vulnerable adults, to comply with the legal privacy rights of third-parties such as other family members, pupils, members of your staff and other professionals or as in the case we dealt with above, to withhold highly sensitive details that could create a risk to a person including a child, if disclosed, such as addresses, medical information, or allegations.
Remember to only redact what is necessary to protect as above, don’t over-redact to the point that any content becomes meaningless or is prejudicial against one or other parties. The Family Court judge has made the order for disclosure of your records for a reason, and you should always bear that in mind. In these cases, less redaction is best whilst still protecting against the risks and compliance above. You should always be in a position to justify your redaction, so it is good practice to annotate your notes with your rationale for redaction.
And as ever do not redact the original documents, always redact copies and retain originals for potential inspection by the Court.
And remember a judge can still direct the party to re-serve documents and records without any alteration.
Court orders for disclosure will cause you some concerns, at the very least you will need to balance competing legal requirements whilst maintaining your key role to protect children. As a Data protection Officer (DPO) it is best practice to immediately inform the head/principal, designated safeguarding lead (DSL) and, where appropriate, the academy trust or local authority data protection lead. Include these roles in conversations and discussions about how you will handle extremely sensitive records, it may be the Head/Principal or CEO who has to decide whether to disclose or redact.
It is impossible to apply an across-the-board approach to how you handle such orders. Carefully read all of the directions by a judge, in our experience there are differences and variations in each order, and the best approach is the simplistic one; take each on a case-by-case basis to help you respond to the order.
We include support and work on Court Orders in our managed service provision. Talk to us about how we can help you deal with these complex and challenging requests.
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