Child care. Clearing the child care minefield

The lack of any uniform code to offer guidance in child care cases is an ongoing problem. Issues of disclosure and confidentiality are central to the roles of the panel solicitor and guardian ad litem, but without a uniform code they are forced to navigate through sections, rules, case law and guidance. In addition, practitioners need to refer to local Area Child Protection Committee guidelines.

The duties of confidentiality borne by the panel solicitor and guardian ad litem are further complicated by their close working relationship. As such, there is much to add to the commentary on the infamous Oxfordshire CC v P (1995).

Despite the Lord Chancellor introducing the Children Act 1989 as part of a “rolling programme of reform”, the dream of a unified family court remains unrealised. Disclosure issues are intensified by the conflict between the criminal and civil child care systems, sustained by the absence of any forum to discuss associated problems. Often, issues of disclosure are accompanied by conflicting allegiances to court and child. The problem is exacerbated by disparate agencies, with their own codes of conduct, trying to work together.

The problem of joint assessment by housing and social workers is well known. If a child discloses abuse to the joint team, confidentiality is assured by the housing officer, yet the social worker must be notified of the need to protect the child. The scenario in Oxfordshire is a case in point. On a holiday weekend, a mother admitted abuse to the guardian ad litem who then had to make a critical judgement of whether to disclose to the authorities.

With abundant ethical problems relating to the use of civil evidence in criminal proceedings, or vice versa, practitioners must steer a precarious course through a minefield of disclosure and confidentiality issues.

In the case of Oxfordshire County Council v M (1994) it was held that the correct approach in Children Act proceedings was to follow the principles established in wardship cases on the grounds that in both cases proceedings are predominately non-adversarial. Accordingly, the court will balance the best interests of the child, as served by securing frankness of evidence and confidentiality, against the public interest of serving justice. In Re K and others (Minors) (Disclosure) (1994) Justice Booth was faced with a father's application to disclose a statement made by the mother in Children Act proceedings, for use in his criminal defence. Applying the principles of Re D (Minors) (Wardship: Disclosure), the judge held that although it was unlikely evidence produced in Children Act proceedings would be admissible in criminal proceedings, the court would still not grant leave for disclosure since it would not benefit the child. The child's interests were deemed utmost priority.

Additional duties are placed on solicitor and guardian in relation to documents by Rules 1991 r 4.23/r.23 (ie Family Proceedings Courts (Children Act 1989) Rules 1991 and The Family Proceedings Rules 1991) which state “not withstanding any rule of court to the contrary, no document, other than the record of an order, held by the court and relating to proceedings to which this part applies shall be disclosed other than to (a) a party, (b) the legal representative of a party, (c) the guardian ad litem, (d) the Legal Aid Board, or (e) a welfare officer without the leave of the judge or district judge”.

Obtaining leave in the family proceedings court is a matter of writing to the clerk; in the county court, a specific application should be made.

In accordance with the Guide to the Professional Conduct of Solicitor 1991, paragraph 16.01, a solicitor has a general duty to keep his client's affairs confidential. A solicitor's duties of confidentiality in disclosure situations are imposed by a code of ethics in the Law Society's Professional Standards Bulletin Number 5. This is essentially a revision of guidance produced by the Family Law Committee in 1987 on confidentiality and privilege in cases of child abuse and abduction.

Where the client is committing a crime, the solicitor must consider whether he has a duty to disclose, given the age and understanding of his client. Where an adult client is abusing or intends to abduct a child, the solicitor is obliged to disclose. The duty to maintain confidentiality is only retained if the solicitor has explained the consequences of the action to the client and is satisfied they are dissuaded from doing it.

A variation on this is where an adult client claims a third party is abusing a child. In this case, the solicitor has a duty to persuade the client to disclose knowledge to the authorities, or allow the solicitor to disclose.

Where the client is a child, the position differs in that the solicitor, in consultation with the guardian, must make a judgement of the child's maturity. The solicitor can disclose the abuse to the authorities even where the child is sufficiently mature to give instructions.

The duties placed on the guardian are partly outlined in the National Association of Guardians ad litem and Reporting Officers' (Nalgro) code of ethics and practice. There is no clear statement of the guardian's position in disclosure issues in either this code or the Law Society's one. However, there are various principles for solicitors and the guardian's duty to act in the child's best interests is a recurrent central theme.

Paragraph 3.1 of the code states: “The guardian ad litem or reporting officer is accountable to the court and must ensure that independence from other parties to the proceedings is not compromised.” The parameters of the Galro's investigation, set by paragraph 12.1 of the Code of Practice, are defined in terms of an “overall responsibility” to safeguard the child's interests.

Case law is dominated by the example of Oxfordshire County Council v P in which Justice Ward decided that, because the guardian's written report was confidential, so too was the report-making process. As a result, the duty of confidentiality imposed by rule 23 is a strict one and the guardian or panel solicitor must seek leave of the court before passing on any information of abuse to the police or local authority.

Another case of importance is Re C (Expert Evidence: Disclosure: Practice) (1995). The court stated that where a guardian ad litem came across information that the local authority did not intend to disclose, and believed it should be disclosed, the court's attention should be drawn to the nature of the documents. Where there was a claim of public interest immunity, the guardian should ask the court to use its discretion to override this immunity.

In conclusion, the roles of the panel solicitor and guardian differ in one crucial respect. The guardian reports for the court and the duties of confidentiality relate to that. The solicitor, on the other hand, acts for the client. However, interaction between the solicitor and guardian is common, such as when the solicitor is uncertain of a child's maturity and must seek advice. For the panel solicitor, the situation is complex and he must be mindful of both his own and the guardian's duties of confidentiality.

Perhaps this emphasises the value of using a solicitor who is on the panel and who is child, guardian and court-sensitive.

The overall duty of both professionals is to safeguard the child's interests. Although both professions have produced guidance for their members, Nalgro's code of ethics is fairly ill-defined and should be revised on the basis of the Oxfordshire County Council v P decision.