Re D (Minors) (Conciliation: Disclosure of Information)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, BUTLER-SLOSS, LJ AND ROSE, J
Evidence – privilege – parents' cross-applications for residence orders – statements made in course of conciliation – whether evidence of such statements admissible – principles to be applied.
The parents were married in 1985. They had two children, twins, who were born in 1988. The marriage ran into difficulties and in 1990 there were wardship and non-molestation proceedings. In July 1991 the mother began to consult a consultant psychologist. In March 1992 the mother petitioned for divorce. She continued to have consultations with the psychologist. On three occasions in May and June 1992 the mother and father jointly attended meetings with the psychologist. These joint meetings were held for the purpose of conciliation, the psychologist acting as conciliator. During the period of the meetings both parents applied under the Children Act 1989 for residence orders in relation to the children. For the purpose of the hearing the mother filed a statement by the psychologist based on the three joint meetings. The father objected that the statement was inadmissible in that it disclosed, without his consent, what had passed on a privileged occasion. At the hearing the Judge ruled that it should be excluded.
The mother appealed.
Held – dismissing the appeal: Evidence might not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation. This applied to a statement made by one party even if, in the judgment of the other party or the conciliator, that party had shown no willingness to compromise. An exception could apply in the very unusual case where a statement was made clearly indicating that the maker had in the past caused, or was likely in the future to cause, serious harm to the well-being of a child. Even in the rare case falling within that narrow exception, the trial Judge would still have to exercise a discretion whether or not to admit the evidence. He would admit it only if, in his judgment, the public interest in protecting the child outweighed the public interest in preserving the confidentiality of attempted conciliation. In the present case the statement of the psychologist was not admissible.
Statutory provisions referred to:Children Act 1989.
Cases referred to in the judgment:D v NSPCC [1978] AC 171; [1976] 3 WLR 124; [1976] 2 All ER 993; [1977] 2 WLR 201; [1977] 1 All ER 589.
Henley v Henley [1955] P 202; [1955] 2 WLR 851; [1955] 1 All ER 590.
Kitcat v Sharp (1882) 48 LT 64.
McTaggart v McTaggart [1949] P 94; [1948] 2 All ER 754.
Mole v Mole [1951] P 21; [1950] 2 All ER 328.
Pais v Pais [1971] P 119; [1970] 3 WLR 830; [1970] 3 All ER 491.
Pool v Pool [1951] P 470; [1951] 2 All ER 563.
Practice Direction (Family Division: Conciliation Procedure) [1982] 1 WLR 1420; [1982] 3 All ER 988.
Practice Direction (Family Division: Conciliation Procedure) (No 2) [1984] 1 WLR 1326; [1984] 3 All ER 800.
Practice Direction (Family Division: Conciliation) [1992] 1 WLR 147; [1992] 1 All ER 421.
Registrar's Direction: Children: Inquiry and Report by a Welfare Officer [1987] FCR 48.
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280; [1988] 3 WLR 939; [1988] 3 All ER 737.
Theodoropoulas v Theodoropoulas [1964] P 311; [1963] 3 WLR 354; [1963] 2 All ER 772.
W v Egdell [1990] Ch 359; [1990] 2 WLR 471; [1990] 1 All ER 835.
Additional cases cited in argument:A (Wardship: Disclosure), Re [1991] FCR 844.
B (A Minor) (Confidential Information), Re[1992] 2 FCR 617.
Buckinghamshire County Council v Moran [1990] Ch 623; [1989] 3 WLR 152; [1989] 2 All ER 225.
C (A Minor) (Evidence: Confidential Information), Re [1991] FCR 553.
Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586; [1975] 3 All ER 333.
Cutts v Head [1984] Ch 290; [1984] 2 WLR 349; [1984] 1 All ER 597.
Daintrey, Re; ex parte Holt [1893] 2 QB 116.
Grace v Bainton (1877) 21 SJ 631.
H (Conciliation: Welfare Reports), Re [1986] 1 FLR 476.
M (Social Work Records: Disclosure), Re [1990] FCR 485.
Ramsbotham v Senior (1869) LR 8 Eq 575.
R v Birmingham City Council, ex parte O [1982] 1 WLR 679; [1982] 2 All ER 356.
R v Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388; [1972] 3 WLR 279; [1972] 2 All ER 1057.
South Shropshire District Council v Amos [1986] 1 WLR 1271; [1987] 1 All ER 340.
Additional Cases referred to in skeleton arguments:C (A Minor) (Confidential Information), Re [1991] FCR 308.
K (Infants), Re [1965] AC 201; [1963] WLR 408; [1963] 3 All ER 191.
AppealAppeal from Miss Beryl Cooper, QC sitting as a deputy High Court Judge.
In March 1992 the mother of two children began proceedings for divorce. In May and June she and the father attended three meetings with a consultant psychiatrist for the purpose of conciliation. During June 1992 each parent applied under s 8 of the Children Act 1989 for a residence order in respect of the children. In those proceedings the mother filed a statement by the conciliator relating to the three meetings she and the father had with the conciliator. The father applied that the statement be excluded on the ground that it amounted to evidence of privileged communications. The deputy Judge ruled that the conciliator's statement be excluded from the hearing of the applications for residence orders under the 1989 Act.
The mother appealed with the leave of the deputy Judge. The grounds of appeal were: (1) that the deputy Judge was wrong in law in holding that the evidence of the conciliator was inadmissible as constituting evidence of privileged communications; or (2) that the deputy Judge was wrong in holding that the privilege was absolute and that she was precluded from reading the statement; or that if the deputy Judge had accepted that otherwise privileged evidence might lead to a loss of privilege if it fell within one or more of the following categories:
(a) the communications failed to disclose any genuine attempt to negotiate,
(b) the communications contained threats,
(c) there were other exceptional circumstances such that the privilege should be overridden in the interests of the children concerned,
she was wrong to decline to read the statement knowing it to be the mother's case that the content of the statement was to bring it within one or more of those categories; and (3) the deputy Judge had been wrong to exclude the statement as it contained...
To continue reading
Request your trial
-
Re T (A Child) (Suspension of contact) (Section 91(14) CA 1989)
...91(14) order), Re[2009] EWCA Civ 674, [2009] 2 FLR 1461. D (minors) (conciliation: disclosure of information), Re [1993] Fam 231, [1993] 1 FCR 877, [1993] 2 All ER 693, [1993] 2 WLR D (minors) (conciliation: privilege), Re[1993] 1 FLR 932. Farm Assist Ltd (in liquidation) v DEFRA (no 2) [20......
-
N v N (Jurisdiction: Pre Nuptial Agreement) sub nom N v N (Divorce: Ante-Nuptial Agreement)
...CA. CB and JB (minors) (care proceedings: case conduct), Re[1998] 2 FCR 313. D (minors) (conciliation: disclosure of information), Re[1993] 1 FCR 877, [1993] Fam 231, [1993] 2 All ER 693, [1993] 2 WLR 721, Des Salles d’Epinoix v Des Salles d’Epinoix [1967] 2 All ER 539, [1967] 1 WLR 553, CA......
-
Re D (A Child) (Hague Convention: Mediation)
...but rather would be immune from disclosure in all circumstances, save for those identified in Re D (minors) (conciliation: privilege)[1993] 1 FCR 877. The latter were those accepted within the mediation framework itself, namely that disclosure might be justified where there was a risk of si......
-
Practice Direction (Ancillary Relief Procedure) (25 May 2000)
...appointment is an important part of the settlement process. As a consequence of Re D (minors) (conciliation: disclosure of information) [1993] 1 FCR 877, [1993] Fam 231, evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence......