Family Law

Privilege and professional practice

In Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J dealt with a care case which involved allegations of sexual abuse of two young girls. They were aged 13 (X) and 12 (Y) at the time of his judgment. The proceedings are continuing. There were a variety of allegations against the children’s father and two male friends of the mother dating back nearly ten years.

Keehan J summarised his conclusion on the facts he had found during the 17-day hearing that the girls had been subjected to ‘sustained and prolonged sexual abuse’ over a number of years by their father and the two males (YQ and ZK); to physical abuse by their father; and their immediate family – their mother and maternal grandmother – had failed to protect them ([288]).

A number of questions in relation to the rules of evidence, the law on how children’s evidence should be treated and of professional privilege arise from the judgment. The first of these was dealt with in Pt 1 ‘Rules of evidence in care proceedings’. Children’s evidence was dealt with in Pt 2. This article considers issues of confidentiality and legal professional privilege (LPP) which arise from the judgment.

Privilege

The children were originally represented by a solicitor (SN) and a children’s guardian (AB). Keehan J records that ten weeks into the care proceedings they went to see X:

‘[172] On 30 August 2016 the then children’s guardian, AB, and the children’s solicitor, SN, visited X in her foster placement for the purpose of speaking with her, ostensibly to gain her wishes and feelings about giving evidence at this hearing.’

What happened when they met X is recorded by Keehan J as follows:

‘[173] During the course of this interview X is recorded as having made a number of disclosures relating to her having been sexually abused.

[174] On 6 September 2016 AB and SN paid a similar visit to Y.

[175] At an advocates' meeting the disclosures made by X in her interview on 30 August were revealed. It became apparent that no referral in respect of those disclosures had been made to the local authority nor to the police. The advocates’ meeting was immediately terminated and an urgent directions hearing was sought before the then allocated judge.

[176] The children’s guardian and the children’s solicitor were ordered to disclose their notes on both interviews with the children and to file and serve witness statements.

[177] On 30 September 2016 the appointment of the children’s guardian and the children’s solicitor were terminated and a new guardian and solicitor were appointed for the children…’

The meeting with X arose, explained Keehan J (at [186]), at his request ‘to establish X’s views about giving evidence’. The solicitor took the lead in the interview (an interview described in detail by the judge at [172] to [212]) as AB had not been at the previous court hearing. AB said, however, that she did not refer the information about sexual abuse from X to the police, because SN had said she needed to discuss the matter with the barrister then instructed for the child. AB and SN visited Y a week later.

At an advocates’ meeting ([175] above) took place two weeks later. This was attended, it must be assumed, by the barrister for X, retained by SN. This meeting and its consequences were explained by the judge as follows:

Privilege, confidentiality and meeting the children

This series of events raises the following questions about SN’s and AB’s respective involvement with this case:

• Confidentiality and advice privilege: did SN have the authority of both X and Y to pass on information at the advocate’s meeting?
• LPP: if not why did SN say anything, before she had consulted with her professional body (eg SRA) as to what her duties to her clients and the court?
• Confidentiality and Working together to safeguard children (2015): why did not the AB immediately pass on information to the police or local authority?
• Why was the judge asking the solicitor to make inquiries (see [186] referred to above) where the evidence, if to be given in court, would be part of the local authority’s case?
• Was the solicitor warned as to her entitlement to self-incrimination privilege?

But first a disclaimer and an apology (as appropriate), especially to the judge: assumptions must be made in what follows, which may not be justified. The judgment is full; but inevitably questions unanswered by it arise. In particular it is not possible to tell whether SN had the authority of both her child clients – explained by her to them in terms which X and Y would understand – to breach their confidentiality (as she appears to have done at the advocates’ meeting recorded at [175] (above)). Self-incrimination privilege was not mentioned by the judge when he said what he did at para 1(i) of his order; but perhaps he did in the course of any hearings of this case.

Confidentiality and legal professional privilege

A definition of ‘confidentiality’ was provided by Lord Goff in Attorney-General  v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] 3 All ER 545 (Spycatcher case). A person (confider) can pass on information to a confidant; and that confidant is not permitted to breach the confider’s confidence. There is a public interest in the protection of confidences; and confidentiality can be protected by injunction if need be (see Evidence in family proceedings by David Burrows (2016, Jordan Publishing/LexisNexis) Chapter 15). It can be overridden if a higher public interest demands this (eg child protection; disclosure and a fair trial etc; and see W v Egdell [1990] Ch 359, [1990] 1 All ER 835 especially per Bingham LJ in the Court of Appeal).

Gillick v West Norfolk and Wisbech AHA [1986] AC 112, [1986] 1 FLR 224 concerned confidential information passed on – hypothetically, in the case of Mrs Gillick and her girls – by a child to her doctor; and to the fact of confidentiality applying to a child under 16 provided that they were of intelligence and understanding. The extent of X and Y’s Gillick-competence is touched on later.

By contrast with confidentiality, LPP is absolute (see eg R v Derby Magistrates’ Court exp B [1996] 1 AC 487, [1996] 1 FLR 513 cited by McFarlane LJ below; and see Evidence in family proceedings by David Burrows (2016, Jordan Publishing/LexisNexis) Chapter 14). Legal advice privilege, sub-category of LPP, applies to confidential information passed by a client to his or her lawyer ‘in a legal context’ (Balabel v  Air India [1988] Ch 317 per Taylor LJ in the Court of Appeal), to enable that client to speak freely and obtain legal advice secure in the knowledge that what is said cannot be passed on by the lawyer in any way (Anderson v  Bank of British Columbia (1876) 2 Ch D 644 per Sir George Jessel MR).

The children’s guardian is in a quite different position to the lawyer. No question of privilege applies to her. If information was given to her in confidence by X and Y, she should have explained to them straight away that she probably could not respect that confidence. Her duty is to the court and to ‘safeguard their interests’ (Children Act 1989, s 41(2)(b)). She is bound by the guidance in Working together to safeguard children (2015). She must pass on to the relevant public authority (the local authority or the court) what she is told (and see David Burrows, ‘Child confidentiality: a clash of professional rules’ [2017] Fam Law 638).

Legal professional privilege and client-solicitor meeting

In Re E (A Child) (Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675, a judge made an order that evidence be filed as to a meeting with a child client. The child’s LPP appeared to have been breached. In Re E McFarlane LJ records what happened in that case:

‘[74] On the 2nd November 2015 A’s Cafcass guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit (G)). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.’

An order was made by Keehan J in the Wolverhampton case (at [20]) for the filing of evidence by SN, and after the advocates’ meeting where information was given by or on her behalf to other parties. Keehan J’s order was that X and Y’s new solicitor:

‘1(i) … shall write to the appropriate manager at [ ] Solicitors informing her that SN, the former children’s solicitor, employed by them is likely to be a witness of fact in these proceedings and is likely to be the subject of criticism as to her professional conduct;…’

This followed an earlier order made by a circuit judge who had conduct of the case prior to Keehan J, who had recorded (see [19]) that SN and AB had lodged statements with the West Midlands Police, and that they ‘will have to give evidence’. At para 4 of the order at [20] Keehan J orders the filing of AB’s and SN’s statements.

Privilege and SN

Two forms of privilege may be relevant:

• Legal professional privilege (LPP): and
• Self-incrimination privilege.

What was said by the children to SN, unless they authorised the lawyer to reveal what was said (ie that they specifically waived privilege), is covered by legal advice privilege, in exactly the same way as for any adult client; and assuming that each are Gillick-competent. The entitlement of a child to confidentiality and privilege is explained by McFarlane LJ in Re E as follows:

‘[90] … A, as a party to the proceedings who is represented by his  own solicitor, must be entitled to the same protection afforded to all other  individuals who undertake communications with their lawyers. No suggestion was  made in the hearing of this appeal that any different standard or approach  should be taken to A either because he is a child or because he may lack the  capacity to instruct his solicitor directly.’

Keehan J does not refer to Re E on the issue of privilege. In Re E the solicitor (S) was criticised for failing properly to respect A’s right to advice privilege. A was born in 2001 (ie he was a year or so older than X). He was described by McFarlane LJ as that he:

‘[69]  … has been assessed as having a ‘borderline to low average’ ability in most  areas of functioning, but with an ‘extremely low to low average’ ability to  process information that is given to him. Well over 90% of the normal  population would perform better than he does at most intellectual tasks.’

A (in Re E), and X and Y in the Wolverhampton case, are likely to have been of comparable vulnerability and intelligence. All three were entitled to have their views respected. In terms of Gillick it is likely that they would be entitled to expect confidentiality and advice privilege. This was certainly accorded to A by McFarlane LJ as his para [90] (above) shows.

Legal professional privilege and Re E

McFarlane LJ cited (at [90]) Lord Taylor in R v Derby Magistrates’ Court exp B (above). In that case Lord Taylor said, at [1996] AC 487 at 507:

‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’

It will be recalled that in the Derby case, B could not be compelled to release to the police his lawyer’s file (because it was covered by advice privilege). This was so, even though the file might show that his step-father was innocent of a murder for which the step-father was being tried. As Lord Nicholls said at [1996] 1 FLR 513 at 530

‘Subject to recognised exceptions, communications seeking professional legal advice, whether or not in connection with pending court proceedings, are absolutely and permanently privileged from disclosure even though, in consequence, the communications will not be available in court proceedings in which they might be important evidence.’

‘[91] … It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client's rights are properly acknowledged and protected.’

‘[97] … Whilst the judge may have been correct that the mere formulation of aspects of the existing evidence into a more detailed threshold document was not a breach of A's rights under Article 6, her judgment does not engage with the processes adopted by the social worker, guardian and solicitor in the context of those rights. That this is so is not altogether the fault of the judge, as no party seems to have been aware of that aspect of the case during the hearing. Nevertheless the judge did make an order requiring a party's representative to file a statement setting out what transpired at a meeting expressly established to elicit that party's instructions to his lawyers on serious allegations of abuse. That is a significant and highly unusual  order to make and, irrespective of the position of the parties, the judge ought  to have questioned the basis of the proposed order and been aware of the need  to protect A’s Art 6 rights and his entitlement to legal professional  privilege.’ [Emphasis added]

In the Wolverhampton case it is easy to understand the judge’s deep reservations as to SN’s interview (see especially [191] to [206]); but the question remains as to whether evidence about that interview should have been before the court in the way it was. In law, and in the absence of a waiver of privilege from X and Y, was the evidence covered by the child’s ‘absolute right’ to LPP (as explained by Lords Taylor and Nicholl in the Derby Justices’ case)?

Self-incrimination privilege

Keehan J makes it clear in his order at 1(i) above, that SN is ‘likely to be the subject of criticism as to her professional conduct’. The concept of self-incrimination privilege is associated more with criminal prosecution; but R v K (A) [2009] EWCA Crim 1640, [2010] 1 FLR 807 makes it clear that any information which is ‘obtained under compulsion’ – in Wolverhampton SN was ordered to file her evidence – in any forensic context is covered by the privilege.

If SN was not warned of her right not to incriminate herself by the filing of the statement, then in any professional misconduct proceedings the applicant may be in difficulties in using evidence filed by SN in the children proceedings. It would have been open to Keehan J to override self-incrimination privilege on public policy grounds (Brown v Stott (Procurator Fiscal, Dunfermline) and another [2003] 1 AC 681, [2001] 2 All ER 97); but this must be the subject of specific findings by him (see further Evidence in family proceedings by David Burrows (2016, Jordan Publishing/LexisNexis) paras 18.6-18.10).

Confidentiality and the children’s guardian

There may be justified criticisms of how SN conducted the interviews with X and Y; but if these criticisms are based on material the court should not have seen (because covered by advice privilege), then the force of the criticisms is difficult to define. That SN, or counsel instructed by her, told other advocates in the case of the confidential interview, if she had not explained that she would do so to X and Y, then that seems to create a situation akin to Re E. SN may be the author of her own subsequent treatment if she failed to understand the constraints on her LPP rules and the rights of the children who had been her clients.

If it is said that the children lacked ‘capacity’ (ie they were not in any way Gillick competent), that is not stated in the judgement. There is no evidence that anyone, least of all SN, conducted any assessment of the capacity of X (especially) to give instructions and to understand the relevance of confidentiality (what children often call ‘secrets’). As explained in Pt 2 Keehan J relied extensively on things they said.

As McFarlane LJ makes clear in Re E, children are as much entitled to respect for their confidences as are adults. Gillick remains as much good law as it did in 1985; and that case was precisely about respecting the confidences of children under 16.

What should a solicitor in the position of the Wolverhampton solicitor do?

With respect to Keehan J, the fact that he asks for the information as to ‘X’s views about giving evidence’ ([186]) does not override X and Y’s entitlement to advice privilege. The point of advice privilege is that the court is not entitled to know what a client says to a lawyer, unless the client authorises the lawyer to tell the court what was said (ie waives privilege). Rules for the guardian are, in this respect, almost the opposite (see Working together to safeguard children (2015), and as explained above).

Whatever may have been said by X and Y, SN was not entitled to say anything to anyone, unless one or both children authorised her to do so. The dire standard of the interview she did disclose to the court – see [192]-[206] – is a separate matter: it may have been entirely deserving of the judge’s censure. But should it have been released to the court? The privilege question remains.

If SN was concerned as to whether she should say anything to anyone, she should discuss the position with professional colleagues; or contact the Solicitors' Regulation Authority help-line, before overriding privilege. She should ensure that, in terms they could understand, both her clients understood that their ‘secrets’ were to be passed on (if she concluded that overriding privilege was her duty). And if she was ordered to file evidence where she thought her clients’ privilege was being overridden, she should contemplate an appeal. If the precedent of the Derby Justices’ case was to be followed – as McFarlane LJ urged – there is no guarantee that such overriding would be appropriate.

Privilege and the welfare of children

If it be urged that the welfare of the children dictated that privilege be overridden: that is not the legal adviser’s job; nor is it the law (see eg Gillick). There are plenty of others individuals in a case like this – including the children's guardian – who can ‘share’ information with the relevant safeguarding authorities under Working together to safeguard children (2015).

LPP rules put a lawyer in a different position. As judges since the early 19th century (a list of pre-1996 cases is recorded by Lord Taylor in the Derby Justices’ case) have been at pains to stress: administration of justice demands that individuals – and if of age and understanding, children are in no different position – must have access to a person to whom they can tell their whole story, without being worried that that person will repeat elsewhere what they have been told.