Re R (Minor) (Legal Professional Privilege) (Disclosure of Material)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Family Division |
THORPE, J
Legal professional privilege – Children Act matter – mother's advisors having material relevant to the determination of the issue – material privileged – whether court could order disclosure.
Family proceedings had been begun in the magistrates' court. They were then transferred to the county court and a final hearing date was fixed. On that date the case could not proceed due to conflicting experts' reports. An application for interim residence was heard. On that day the case was transferred to the High Court and directions were made for the further conduct of the case after transfer.
One of the directions provided that leave be given to each party to disclose to all experts instructed by them all papers and transcripts if prepared. A number of experts had been consulted. The mother's advisors sought to instruct an independent social worker, on the basis, inter alia, that the correctness of social work procedure would be an issue at trial. The mother's advisors obtained leave to instruct a consultant psychiatrist.
That psychiatrist interviewed the mother. During that interview the mother or the father made a statement concerning the use of crack. That statement was included in a report which the psychiatrist sent to the mother's solicitors. The psychiatrist later furnished a report for the purposes of the final hearing which did not contain the statement. The fact of the statement only emerged when the psychiatrist gave evidence. The question arose as to whether the report was discoverable or whether the mother's legal advisors were entitled to conduct the hearing as if the report had never been made.
Held – It was obvious that the report was the subject of legal professional privilege. However, the professional responsibility in those circumstances was not clear. It was established that the court in wardship had the power to order a party to disclose a report to which legal professional privilege attached if it contained material relevant to the determination of the case: Re A (Minors) (Disclosure of Material) [1991] FCR 844. It had been held since that the principle did not extend into Children Act cases. That was
not correct. It was quite plain that the Judge in wardship had a responsibility to investigate any material relevant to the determination of the welfare issue. The court could not accept that the responsibilities of the Family Division Judge had been curtailed now that the principal jurisdiction is under the Children Act 1989. Therefore, it followed that what had been said in Re A applied to Children Act cases decided by a Judge of the Family Division. Where the court considered the welfare of a child, the power it held allied to its responsibility, enabled it to override legal professional privilege.
Per curiam: (1) It was undesirable for the county court to make directions for the future conduct of a case after it had been transferred to the High Court. Any such directions should be made by a Judge or a district judge of the Family Division.
(2) The general leave given to instruct experts in this case was unduly permissive. Far tighter control was necessary to ensure that any leave was specific and not general.
(3) This was not a case about good social work practice. It was not helpful to have days or hours of evidence where one social worker criticized another. This had little bearing on the real issue which was the welfare of the child.
(4) The court would wish the law to go further and hold that legal advisors had a positive duty to disclose any material in their possession relevant to a determination of the future of a child.
Statutory provision referred to:Children Act 1989.
Cases referred to judgment:A (Minors) (Disclosure of Material), Re [1991] FCR 844.
B (Minors) (Disclosure of Medical Reports), Re[1993] 2 FCR 241.
E (SA), Re [1984] 1 WLR 156.
Ian Karsten, QC and Peter Wain for the local authority.
Patricia Scotland, QC, Kharin Cox and Henry Setright for the mother.
Judith Parker, QC and Susan Quinn for the father.
Michel Kallipetis, QC and Caroline Harry-Thomas for the grandfather.
Andrew Kirkwood, QC, Lionel Swift, QC and Elizabeth Coleman for the guardian ad litem.
30 MARCH 1993
MR JUSTICE THORPE.This is a directions appointment in relation to a Children Act case which has filtered through the system from a first beginning in the Chelmsford magistrates' court. It proceeded on to the Chelmsford county court, where it was fixed for final hearing on 15 January. On that day the...
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