Child Care Proceedings - Disclosure of Privileged Communications between Client and his Attorney

“A communication once privileged is always privileged”

Lord Cockburn in Bullock v. Corrie1

In creating more exceptions to the preservation of the ‘Attorney-Client Privilege’, (called as ‘The Privilege’ in this legal notes) Lord Thorpe, in Essex County Council,2 took the bold step in giving the ruling that in view of the fact that ‘welfare of the child is of paramount consideration to the Courts’, Attorneys have ‘the duty to disclose the medical and other reports’ that may contain ‘statements adverse to their clients’ interests’.

While not accepting that the privilege cannot be displaced under The Children Act, 1989 (known as ‘The Act’) without legislative process, Lord Thorpe declared that ‘the Judge in wardship (proceedings) held a responsibility to investigate any material relevant to the determination of the welfare of the child, whether put before him by the parties or in adversarial range or not. Where the Court considers the welfare of the child, the power it holds enables it to override the privilege which is set up to preserve or enhannce the adversarial position of one of the parties’.3

The above ruling was given on the following facts. The Local Council applied for care order in respect of a child of a mother who was already a drug addict. The mother opposed the disclosure of the contents of a Report, already handed over to Legal Counsel of her, prepared by a counsultant psychiatrist on the general behaviour and tendency of drug addicts in matters of protecting the welfare of a child as there were some adverse remarks about her conduct and behaviour.

Lord Thorpe, in giving his ruling, did not follow the opposite view of Lord Douglas Brown in Baking and Dagenham London Borough Council v. O.4 but ‘picked up where Lord Johnson5 left’ and further developed the law on this point. The disclosure of the contents of the Report was allowed by Lord Thorpe.

In Baking Council, the local authority instituted childcare proceedings in resepct of two boys, aged 6 and 2 years.

Subsequent to the interim care orders passed by the Court, the mother was directed to file the 3 medical reports prepared by 3 doctors, on the advice of her Attorney, on ‘her ability to look after the welfare of the children’.

She challenged the ‘directions for disclosure’ as in her opinion these reports were part of ‘legal advice privilege’ as these reports were prepared on the advice of her Attorney as part of the proceedings.6

Lord Douglas Brown held that “proceedings under the ‘C Act’ were adversarial because each party was entitled to be heard, represented and had right to challenge the evidence of the opposite party in cross examination by an Attorney in which the privilege cannot be overridden except upon waiver of the party concerned and therefore the Court had not power to order disclosure of medical reports obtained by her unless she wished to do so”.7

Lord Douglas Brown quoted with approval the earlier judicial dictum of Lord Roskill8 who said that “so long as we have an adversary system, a party is entitled not to produce documents which are properly protected by privilege if it is not to his advantage to produce them, and even though their production might assist his adversary, if his adversary or his solicitor were aware of their contents and might lead the Court to a different conclusion from that to which the Court would come in ignorance of their existence. Some may regret this; but the law has always allowed it and it is not for us to change the law in this respect”.

Lord Douglas Brown ‘declined to follow the opposite ruling of Lord Johnson on similar facts in RE ‘A’ (a minor) when that ruling was understood to be ‘obiter’ as ‘the medical report was offered voluntarily by the Attorney acting on behalf of the mother before the Court compelled her to disclose the report’.

Lord Thorpe took it as ratio for his decision by pointing out that Lord Johnson was ‘asked to rule on the point after hearing full arguments from the leading Lawyers’ though technically speaking it was an obiter.

In coming to his opinion Lord Johnson ‘drew a neat distinction between ordinary litigation and child care proceedings (or wardship proceedings) where ‘the Court had unrestricted jurisdiction to do whatever was necessary for the welfare of the child including the power to override the privilege’ but ‘the power should be exercised only rarely when the Court is satisfied after conducting a balancing exercise that it was necessary in the latter proceedings for the welfare of child’.

Then in 1994, The Court of Appeal9 had an opportunity to decide between ‘these sharp conflicting opinions of Lords Thorpe and Douglas Brown’.

Childcare proceedings in respect of two girls initiated by the Local Authority in London were in progress under S. 31 of ‘The Act’. The Lower Court permitted the parties to disclose to the psychiatrists all the reports already prepared in the case and available with the Court “with a further condition that any reports subsequently prepared by the psychiatrists shall also be disclosed to the Court and to all the parties”.

The mother opposed the imposition of this condition of disclosure10 as these reports were found to contain some information unfavourable to her.

In unanimous decision, Lords Stphen Brown, Steyn and Kennedy declared that Lord Thorpe11 was correct in his approach.

Lord Steyn held that ‘childcare proceedings were not ‘essentially adversarial’ in character and ‘legal profession privilege has to yield to the statutory provisions introduced to protect the welfare of the child’.

It was also held that “If parties were allowed to suppress unfavourable reports the object of the Act would be defeated”.12

Lord Stphen Brown also held that “the proceedings under the Act were adversarial as children cases fell into a special category where the Court is bound to undertake all the necessary steps to arrive at an appropriate result in the paramount interests of the welfare of the child.”

Lord Jauncey too held that “if a party, having obtained the leave of the Court were able to conceal, or withhold from the Court, matters which were of importance and were relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted under The Act. Since litigation privilege was essentially a creature of the adversarial proceedings it follows that, in care proceedings, it never arose, but was excluded by necessary implication from the terms and over purpose of the Act.”

It is interesting to observe that in two more cases Lord Waller13 and Lord Ward14 held a similar opinion to that held by Lord Thorpe.

Finally in 1996 this most important issue was placed before House of Lords.15

The mother of a child of two drug addicts ‘had submitted that her female child had accidentally consumed some quantity of a dangerous drug, called as methadone, eventually becoming seriously ill but fortunately recovered from her illness.’

Thereafter the mother’s Attorney had instructed a Consulting Pathologist to prepare a report on the above incident on the basis of hospital records about the illness of the child.

This report raised serious doubts about the mother’s versions of this incident.

Meanwhile, the Police Department, who came to know about the above report, sought copies of the report by seeking permission to join them in the child-care proceedings under the C Act to make further investigation in some crimes.

The mother opposed disclosure of the report to the police authorities.

Allowing the appeal of the mother, Lord Nichollos, in his dissent, with Lord Mustill on his side, rejected that ‘The Act abrogated the litigation privilege and kept in tact the legal advice privilege’ after noting down the difference between these two types of privileges’16 and also did not accept this dichotomy in the two categories of the privilege.

Lord Nichollos in coming to his dissent had brought in the theory of ‘the procedural fairness’ in recognizing the right of a party to present his case and to adduce evidence ‘without having any anxiety about losing the privilege as it was essential ingredient of a fair hearing’ even in family proceedings, whether adversarial or inquisitorial, under the Act’.

It is somewhat surprising to observe that Lord Nichollos, in spite of accepting that in matters of promoting the welfare of the child, the ‘paramount duty of a Judge is to be pro-active but not merely reacting’ by ‘not confining himself to the evidence brought in by parties but can take all the steps necessary to find the true position, did not find it necessary ‘to side step the ‘procedural fairness if it comes in conflict in protecting the interests of the child’.

To buttress his above opinion. Lord Nichollos invoked Article 6(1),17 reading it with Article 8,18 of The European Convention of Human Rights to hold that ‘in giving an opportunity to obtain legal advice in confidence with Attorney without any danger to the privilege as part of procedural fairness.”

His Lordship rejected the argument that the Act has impliedly abrogated the litigation privilege.19

Lord Nichollos declared that ‘in between the two public interests, the preservation of the legal privilege should be given more importance than the paramountcy of the welfare of the child’.20

In his opinion Lord Nichollos thought that Lord Johnson did not say that ‘the privilege had been completely abrogated but held that the Court had powers in appropriate cases to override the privilege attached to medical reports’.

Lords Nichollos and Mustill did not accept Lord Johnson’s ruling as ‘binding as in their opinion it was obiter’.21

Lord Nichollos firmly believed that the House of Lords in Derbyshire Magistrates Court, Ex. p. B.22 rejected ‘the balancing approach in favour of lifting the privilege’.23

He also ‘emphatically rejected that the distinction’ between ‘legal advice privilege’ and ‘litigation privilege’ as in his opinion both are integral parts of a single privilege and it will be prejudiced if the legal advisor could not approach the witnesses in confidence before advising the client.

But the majority opinion, written by Lord Jauncey, with assent from Lords Lloyd and Steyn, agreed with The Court Appeal that ‘child care proceedings are non-adversarial and investigative’, by declaring decisively that ‘litigation privilege never arose in the first place rather than that the Court could override it. It is excluded by necessary implication for the overall main purpose of the Act’.24

Lord Jauncey also refused to support the minority opinion when he declared that ‘in child care proceedings the notion of fair trial between opposing parties is very less important’ as these are non-adversarial proceedings.25

Explaining the reasons and decision of Lord Taylor in Derbyshire case, Lord Jauncey26 clearly pointed out that ‘the earlier House had no occasion to discuss in what circumstances absolute privilege will apply’. Therefore, he rejected that argument that the absolute nature of the privilege extends equally to all other forms of legal professional privilege and held that there is a distinction between cases where a solicitor could not without his client’s consent be compelled to express an opinion on factually or legal merits of the case and a case where ‘third party who has provided a report to a client can be summoned to give evidence by other side and cannot decline to answer questions as to his factual finding or opinion’.27

The earlier Lord Scarman’s ruling28 that ‘in exercising wardship jurisdiction the Court is truly a family Court and its paramount concern is the welfare of its ward. It will, therefore, sometimes be the duty of the Court to look beyond the submissions of the parties is its endeavour to do what it judges to be necessary’ was quoted with approval by Lord Jauncey.

The dicta of trial Judge Lord Ungoed — Thomas that “it (wardship proceedings) is not based on the rights of parents and its primary concern is not to ensure their rights but to ensure the welfare of the children.......” in his decision in Official Solicitor V. K.29 later challenged in the Court of Appeal, was accepted by Lord Devlin in the Appeal and also, in turn, acceptable to Lord Jauncey.

Therefore, the majority of the House of Lords rejected the mother’s argument and her appeal was dismissed.

There appears to be no relevant case law on this important issue coming under Sec. 26 of the Indian Evidence Act, 1872.

The following two exceptions alone can be found in the section.

They are :

1. Any such communication made in furtherance of any illegal purpose.’
2. ‘Any fact observed by any Barrister, Pleader, Attorney or Vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.’

If in future a live issue in child care and family proceedings comes before the Indian Courts, the judicial approach adopted by Lords Johnson, Thorpe, Jauncey, Lloyd and Steyn is always preferable.

Author Name: C. S. Raghu Raman