Update: children

Client's waiving privilege

The Court of Appeal decision in D (A Child) [2011] EWCA Civ 684 provides a salutary lesson for practitioners advising in the difficult circumstances which are often omnipresent in care proceedings.

The child (C) was six weeks old when he sustained various physical injuries. Interim care orders were made and a fact-finding exercise was listed to seek to identify the perpetrators of the injuries. The mother (M) had initially filed a statement in which she explained that she knew not of the cause of C's injuries. Her position then shifted and less than two months later she filed a statement in which she said that the father (F) had repeatedly yanked C's arm.

Changes in position of this kind are not remarkable; however, in the latter statement, M gave a meticulous exposition of meetings/conferences with her solicitor and barrister. She discussed in part the advice that she was given about telling the truth and the difficulties the court would have without true information about the cause of C's injuries.

F asserted that M had waived professional privilege and so he should have disclosure of attendance notes made by M's lawyers in their meetings with M in the run up to preparation of the second statement. The trial judge made the direction sought by F and gave leave to M to appeal the decision. In considering the appeal Ward LJ discussed the following key principles:

• conferences and meetings between a client and solicitor and/or barrister are confidential and as such attract legal professional privilege (LPP);
• LPP confers on the client a substantive absolute right of fundamental importance to the administration of justice as a whole; and
• LPP can only be waived by the person entitled to LPP, namely the client.

Counsel for M made written submissions that M's lawyers could not be deemed to have waived LPP because M had not been specifically advised as to the nature of LPP or the consequences of waiver. Ward LJ found nothing in this argument and stated M had undoubtedly waived the LPP which would leave the advice sacrosanct. Essentially, M had stepped too far across the threshold; she could have just referred to the dates of her meetings with the lawyers (i.e. 'glancing reference' to the conversations). Fairness dictated that F be given the full picture to be able to ascertain whether M's lawyers had 'led her' to say things that they may have wished to hear.

Having found that waiver occurred, the question turned on fairness. M's counsel made poignant submissions about the sensitive and complex nature of care proceedings vis-a-vis other forms of civil litigation. He argued that LPP is 'probably the only area within the litigation process in which a parent enjoys and is entitled to expect complete privacy and so proportionality demands the widest respect for confidentiality'. The CoA upheld the decision. M had chosen to explain her change in position by exhaustive reference to her discussions with lawyers. F's concern that M might have been saying what the lawyers may have wished to hear rather than saying the truth was a legitimate one and demanded full disclosure.

Ward LJ assists practitioners by commenting that 'to say no more than that 'I am acting on the advice of my solicitors and counsel' will not ordinarily justify further disclosure of the advice or of the circumstances in which any new witness statement came to be drafted' and that lawyers should be on guard to protect their clients from revealing advice either in written or oral evidence.

Peremptory return '“ to court

In R (Children) [2011] EWCA Civ 558, M had removed C from his school and took him back to her home in Dorset. C and his brother lived with F on the Isle of Wight. H remained with F. A month before the removal of C by M, F had made an application for a parental responsibility order and a residence order; however, the first hearing on his applications was listed only after the removal had taken place. Instead of seeking an order for return of C, F's solicitors wrote to the court seeking expedition of the hearing on F's extant applications which was unanswered. There then followed a series of delays and difficulties.

The salient lesson is that in all cases where a parent/carer suggests that a child was wrongfully removed from a primary carer without consultation or agreement and without justification:

 the aggrieved person should make a without notice application to an available court immediately (the day of the removal if possible) seeking a peremptory order for return;

 the application must be issued to a court which has the facility to offer a 24-hour service, or at least a service on every court sitting day; and

 the court should ensure that, following the without notice hearing, there is the facility for a necessary inter partes hearing within a matter of days to review the case.

'Without notice' but with proper and full information

Theis J was sitting as the Family Division's applications judge in KY v DD [2011] EWHC 1277 (Fam) when counsel appeared before her on a without notice application to ward C because of apparent threats by F to remove her from the jurisdiction unlawfully. Theis J was critical of counsel for conveying to the court instructions about the present case which in fact related to a different matter altogether but also because the affidavit from M contained but a few lines which were the evidence on which she relied.

Theis J repeats the correct procedure for without notice applications before the Family Division. She draws on the practice from existing cases. Her judgment is handed down with endorsement from the president of the Family Division. Some of the key considerations when seeking to make such applications are:

• The person seeking relief is under a duty to make the fullest disclosure of all relevant circumstances known to them.
• Once an without notice order is made, the relieved party must bring to the respondent's attention as early as possible all evidential and other persuasive materials on which the court based its decision.
• It is expected that the court will require the applicant or his/her solicitors to given undertakings as to issue the application, the swearing of evidence or the creation of sworn evidence if drafts were not before the court and service of the proceedings, sealed orders and evidence on the respondent.
• The without notice order containing injunctions should cite in a recital or schedule a list of the evidential materials read by the judge.
• The court should be given a balanced, fair and particularised account of the events leading up to the application; in many cases that should include a brief account of what the applicant believes or thinks the respondent's case may be.
• Reasons as to why the application is made without notice and reasons as to why the applicant may seek that the injunction can only be varied or discharged on notice and why any particular return date is sought if not a very short one.
• Third party or independent evidence should be adduced if possible.

In addition to the above, Theis J adds her own observations on three key points:

1. Information relied upon should be subjected to the closest scrutiny. If the applicant is not present in person to verify the information, it should be substantiated by production of a contemporaneous note of the instructions. There may need to be a short adjournment to verify the information if the note is not available.

2. If additional (oral) information is put before the court a direction must be made for the filing of sworn evidence to confirm the information within a very short period of time.

3. It is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.

When 'placement' takes place

The issue of when a child is 'placed' for adoption has again arisen before the CoA. In R (W) Brent Borough Council [2010] EWHC 175 (Admin), Coulson J stated that placement had occurred when the administrative and legal formalities had been concluded and the introductions had begun (see 'Update: family (children)', Solicitors Journal 154/12, 30 March 2010). This matters, of course, because an application to revoke a placement order cannot be made if a child has been placed. The additional difficulty where the applicant is not the local authority or the child is that the applicant needs to obtain permission to make the application for revocation, so technically the local authority could place a child even if application for leave has been made but is not disposed of.

A complex appeal was heard by the CoA in Coventry City Council v PGO and FEO and others [2011] EWCA Civ 729 on two important issues. Only one is considered here. In relation to the concept of when a placement takes effect, Wilson LJ held that a child is not placed for adoption until he begins to live with the proposed adopters or, if he is already living with them (in their capacity as foster carers), when the adoption agency formally allows him to continue to live with them in their fresh capacity as prospective adopters. He goes on to state that 'the court would thereby invest itself with the authority to overrule the decision of Coulson J in the Brent case'.

The case of K (Children) v Sheffield City Council [2011] EWCA Civ 635 was an appeal on three issues but is mentioned here for its consideration of one important issue. The judge in the lower court made a special guardianship order (SGO) to the maternal grandmother (MGM).

In his appeal, F argued that the MGM did not have sufficient experience or knowledge of either the Pakistani culture or the Islamic religion and therefore could not cater to C's needs. Black LJ in giving judgment of the CoA held that the judge had turned her mind to these important issues and she had not exercised her discretion in a way not open to her. There was also a difficult balancing exercise of seeking to keep the child within the family and also consideration of culture and religion.

The appeal court agreed with the judge that F's request to adjourn the proceedings for a further assessment on the issue was not in the child's welfare interests and F's appeal was dismissed.

Placement options for children remain difficult and finely balanced. The case highlights that culture and religion are important but these are considerations which weigh in with other factors and principles. The court has a wide discretion in making welfare determinations. However, had the issue been raised in adoption proceedings, it is arguable that the court might have been more persuaded by F's argument. The difficulty here was that the SGO was sought by a family member and the court will have placed reliance on wishing to keep C within the family.