Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings
1. The Professional Practice Committee of the Bar Council regularly receives enquiries from barristers undertaking family law cases about the nature and extent of professional obligations when the question of whether or not to disclose unfavourable material to their client’s case arises. The unfavourable material may be provided in the form of instructions given at conference; or may be contained within documents generated for the purposes of family proceedings in which counsel is instructed e.g. witness proofs. In many cases where queries arise, the client seeks to withhold information which is likely to be relevant to the court in determining the child’s welfare; and may even be detrimental to the child if the same is withheld. Alternatively, queries may relate to a client’s expressed intentions towards other family members.
2. Family law practitioners should be familiar with the Code of Conduct of the Bar of England and Wales; a barrister’s duty to the client; a barrister’s duty to the court; duties of disclosure generally; the principles of privilege, particularly legal professional privilege and privilege against self-incrimination, and relevant case law1. Essential principles only are distilled below.
Professional obligations
3. Paragraph 302 of the Code of Conduct of the Bar of England and Wales states:
“A barrister has an overriding duty to the court to act with independence in the interests of justice: he must assist the court in the administration of justice and must not deceive or knowingly or recklessly mislead the court.”
Clearly, therefore, counsel must not make representations to the parties or the court which are not accurate in the face of unfavourable material which has been provided by a client, and barristers must not mislead the court.
4. According to Paragraph 303(a) of the Code, a barrister:
“must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person ...”
5. In relation to disclosure and in particular the failure to make proper disclosure to the court or to another party, Paragraphs 608(d) and (e) of the Code provide:
“A barrister must cease to act and if he is a self-employed barrister must return any instructions:
……..
(d) if the client refuses to authorise him to make some disclosure to the Court which his duty to the Court requires him to make;
(e) if having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it;”
6. In relation to the duty of confidentiality owed by Counsel to the client, Paragraph 702 of the Code provides:
“Whether or not the relation of counsel and client continues a barrister must preserve the confidentiality of the lay client’s affairs and must not without the prior consent of the lay client or as permitted by law lend or reveal the contents of the papers in any instructions to or communicate to any third person ... information which has been entrusted to him in confidence or use such information to the lay client’s detriment or to his own or another client’s advantage.”
7. In the Practice Direction (Family Proceedings: Case Management) [1995] 1 WLR 332 Sir Stephen Brown P set out the principle of disclosure in family proceedings as follows:
“It is a duty owed to the court both by the parties and by legal representatives to give full and frank disclosure in ancillary relief applications and also in respect of children”.
The duty is owed both by the parties and by the legal representatives of the parties. However the Practice Direction does not, of itself, deal with the principle of legal professional privilege, or the status of a client’s instructions.
8. The express duty of full and frank disclosure outlined in this Practice Direction, together with a number of decisions to the same effect by various Family Division Judges at first instance (see, in particular, judgment of Wall J in Re DH (a minor) (child abuse) [1994] 1 FLR 679, at 703-704),2 has led to a culture in family proceedings whereby upon advice and with the client’s consent, unfavourable material affecting the welfare of the child is often disclosed to the other parties, and ultimately the court, and any privilege arising in respect of such material is waived. This may be because clients are advised:
(i) that whilst the advocate has a duty to present the client’s case to the best of his or her ability, the advocate has a higher duty to the court and to the child whose interests are paramount to disclose relevant material to the court even if that disclosure is not in the interests of the client (per Wall J in Re DH (a minor) (child abuse) at 704/C).
(ii) that full disclosure of relevant material will result in a fair and proper assessment of the child’s welfare and will assist the court in arriving at the best possible outcome for the child (usually their child).
(iii) that full and frank disclosure is more likely to result in parents and/or carers needs being properly identified, which in turn will impact positively upon the child if they are considered able to care for the child.
(iv) that if relevant information were to be withheld (such as a new relationship with an unsuitable partner), then almost invariably it would emerge during cross-examination or further investigation within the proceedings, and the client might then be heavily criticised and his or her case damaged because of his or her failure to be honest and open with the court at the earliest possible stage.
(v) that in acting for a client counsel cannot mislead the court in any way. Thus where unfavourable information is withheld on the grounds of privilege against self-incrimination, counsel may be obliged to withdraw at a later stage if the client continues to withhold that unfavourable material in oral evidence (where no such privilege can be claimed)3 and in so doing directly or indirectly misleads the court.
9. Subject to questions of privilege which are considered below, where a client does not accept the merits of disclosing unhelpful material to the other parties and the court, and does not consent to disclosure as advised, counsel should withdraw from the case and return his or her instructions. Counsel should not continue to act for a client knowing that there exists information which ought to have been disclosed in accordance with the duty of full and frank disclosure but which, in breach of that duty, has not been disclosed because the client has refused to permit its disclosure.
10. Counsel may also have to make difficult decisions in respect of what can and/or should be disclosed to the other parties and the court notwithstanding Counsel’s withdrawal. Such decisions require an evaluation of counsel’s duty to the client (see below); and whether and how that duty may conflict with professional duties to the court and the duty for full and frank disclosure.
Legal Professional Privilege
11. Legal professional privilege may be classified under two sub-headings: legal advice privilege and litigation privilege. Legal advice privilege covers communications between a client and his legal adviser and is available whether or not proceedings are in existence or contemplated. Litigation privilege embraces a wider class of communications, such as those between the legal adviser and potential witnesses. These communications are privileged only where proceedings are in existence or contemplated.
(i) Litigation Privilege
12. In Re L (Police Investigation: Privilege) [1996] 2 FLR 731 the House of Lords decided that litigation privilege does not apply in care proceedings. Lord Jauncey of Tullichettle, with whom the majority agreed, was of the view that care proceedings are non-adversarial in nature. Litigation privilege has no place, therefore, in relation to reports based on the papers disclosed in the proceedings and obtained from a third party within them. Accordingly all such reports must routinely be disclosed and served within proceedings; as should communications from any party with court appointed experts.
13. However if the report in question was not prepared for the purposes of the care proceedings but for the purposes of criminal proceedings, legal professional privilege may still arise. In S County Council v B [2000] 2 FLR 161, Charles J. held (at 174/C-E) that the father could claim legal professional privilege in care proceedings in respect of his communications with medical experts who had been instructed solely for the purposes of criminal proceedings. Further the privilege is absolute (see p173/B-D) and the duty of full and frank disclosure which arises in care proceedings does not override that privilege (see p183/E-185/H).
(ii) Communications between clients and their advisers (legal advice privilege)
14. In Re L above, Lord Jauncey stated that his decision in relation to litigation privilege “…does not of course affect privilege arising between solicitor and client”. In S County Council v B (above), Charles J decided (at 179/E-F) that Re L preserved legal professional privilege in respect of communications between solicitor and client, and draft statements and discussions as to the relevant facts between solicitor and client for the purposes of proceedings under the Children Act 1989. See also Wall J. in A Chief Constable v A County Council [2002] EWHC 2198 (Fam), paragraph 96. Currently, therefore, legal professional privilege applies to communications with the client in family proceedings (see also Lord Nicholls, in Re L on this point).
15. Legal professional privilege rests upon the principle that a client must be free to consult his legal advisers without fear of his communications being revealed. In this way, the interests of the administration of justice are maintained. Privilege is absolute, and remains even where he who asserts the privilege no longer has any recognisable interest in upholding that privilege (R v Derby Magistrates Court ex parte B [1996] 1 FLR 513).
16. R v Cox and Railton (1884) 14 QBD 153 provides a well recognised exception to legal professional privilege: namely, where the disclosure or communication amounts to a crime or is intended to further a criminal purpose. Within the judgment of Stephen J who gave the judgment of the court4 in Cox v Railton the following passage appears:
“The reason on which the rule [of legal professional privilege] is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule”.
17. The limits of what is protected by legal professional privilege should also be noted. Where the client knows of relevant information which ought to be disclosed in accordance with the duty of full and frank disclosure (such as a new relationship with an unsuitable partner), that information does not become entitled to legal professional privileged simply by the act of telling it to Counsel. The client remains under a duty to disclose the information in accordance with the duty of full and frank disclosure notwithstanding the communication of the information to Counsel.
18. On the other hand, the same reasoning would not necessarily apply to information which is likely to lead to a danger of self-incrimination by the client. Such information, if entitled to privilege against self-incrimination before it was told to Counsel, would continue to be entitled to that privilege after being told to Counsel.
19. It is for counsel to decide, as a matter of law, whether legal professional privilege arises in respect of any unfavourable information which is disclosed to Counsel during the course of dealings with the client. Broadly speaking, and subject to the comments in paragraphs 16-18 above, LPP may arise in respect of discussions between counsel and client; and documents generated as a result of legal advice or instructions (such as witness proofs), whether in contemplation of a case or in the course of it.
Privilege against self-incrimination
20. Privilege against self-incrimination may arise in respect of the disclosure of information which is likely to lead to a danger of self-incrimination by the client or his/her spouse or civil partner (see Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, 416C, 419F).
21. Privilege against self-incrimination may permit the withholding of information and non-co-operation with the court’s investigation which would otherwise be required in accordance with the duty of full and frank disclosure which arises in care proceedings. However the privilege does not excuse the client from giving evidence on any matter or entitle the client to refuse to answer any question put to him in the course of his giving evidence (Children Act 1989, s.98(1)). As Wall J. said in A Chief Constable v A County Council [2002] EWHC 2198 (Fam), paragraph 96:
“A lawyer whose client admits child abuse in a conversation covered by legal professional privilege is placed in a very difficult position. Lawyers have a professional duty not to mislead the court, and plainly cannot conduct the parent's case in a manner which is inconsistent with any admission made to them. However, lawyers cannot, without the consent of their clients, breach or waive the privilege. Thus although lawyers may advise their clients to be open and honest with the court, they are also entitled, without breaching professional standards, to advise parents in care proceedings that, subject to section 98(1) of the Children Act 1989, they are not bound to co-operate with the court's investigation. They should, however, in my judgment, advise their clients that anything they say to an expert witness in the context of the latter's investigations, is protected by section 98(2) of the 1989 Act.”
22. Likewise where a child who is in care has been abducted and a recovery order has been made requiring a person with information as to the child’s whereabouts to disclose it, the privilege against incrimination does not excuse compliance with the requirement (Children Act 1989, s.50(11).
The duty of confidentiality
23. The duty of confidentiality owed to the client by Counsel is contained in Paragraph 702 of the Code of Conduct which is set out at paragraph 6 above.
24. As stated in paragraph 702, client confidentiality may be overridden where “permitted by law”. This exception would apply where the law specifically requires or authorises the disclosure of the information in question notwithstanding the duty of confidentiality. The exception may also apply where disclosure is in the public interest and, in proceedings for breach of confidence, it is referred to as “the defence of just cause and excuse”. A balancing exercise is required in the application of the public interest exception. Each case will turn on its own facts.
25. In considering whether to disclose any information covered by client confidentiality without the clients’ consent, Counsel should bear in mind the importance which the law attaches to the right of every person to obtain legal advice in confidence. Further if any disclosure is to be made without the client’s consent, it should not be any wider than is reasonably necessary in the circumstances, e.g. disclosure to the relevant authorities but no more.
26. Counsel should also keep in mind that In Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231, the Court of Appeal refused to allow any exception to the privilege which attaches to statements made by one or other of the parties in the course of conciliation “save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well being of a child.” (see p241/A-B).
Guiding Principles
27. The Code of Conduct of the Bar of England and Wales sets out duties which all barristers must obey. It is professional misconduct to breach the rules and can result in a barrister being charged with misconduct upon receipt of a complaint by his professional body. Barristers should be aware of the content of the Code; and of the relevant law in the context of potentially conflicting duties between the interests of the client and duties to the court in family proceedings.
28. Counsel should advise the client of the duty of full and frank disclosure in family proceedings and of Counsel’s higher duty to the Court at the outset of any meeting with the client. If a client wishes to withhold relevant information in respect of the welfare of the child, the client should be advised of the importance of disclosing relevant information. In most cases, the information is likely to emerge in any event, in cross-examination or in further investigation within the context of the proceedings. It is usually less damaging to a client’s case to be honest and open with the court at the outset; and it is always better in assessing the child’s welfare that parties are honest. If privilege arises in respect of such information, the client should be advised of his or her right to claim privilege subject to the matters set out at paragraph 21 above.
29. If no privilege arises in respect of the unfavourable information but the client rejects Counsel’s advice and seeks to withhold that information, counsel should withdraw from the case and return his or her instructions. Counsel should not continue to act for a client knowing that there exists information which ought to have been disclosed in accordance with the duty of full and frank disclosure but which, in breach of that duty, has not been disclosed because the client has refused to permit its disclosure.
30. If LPP does apply, the privilege is absolute and information cannot be disclosed without the permission of the client. Likewise, the duty of confidentiality cannot be breached, other than as permitted by law. Counsel may contact the Ethics Helpline (020 7611 1307 or email), where those dealing with such queries are not permitted to advise on the law, but can discuss the judgment to be exercised.
Professional Practice Committee
Bar Council
January 2010
1 For duties to the court and disclosure see:
Saif v Sydney Mitchell [1980] AC 198;
Re R (a minor) (disclosure of privileged material) [1994] Fam 167; [1993] 2 FLR 826; [1993] 4 ALL ER 702
Oxfordshire County Council v M and another [1994] Fam 151; [1994] 1 FLR 175; [1994] 2 ALL ER 269
Re DH (a minor) (child abuse) [1994] 1 FLR 679;
Oxfordshire County Council v another v P [1995] Fam 161; [1995] 2 ALL ER 225.
Vernon v Bosley (No 2) [1997] 1 ALL ER 614
Arthur Hall v Simons [2000] 3 ALL ER 673;
For Legal Professional Privilege see :
R v Derby Magistrates’ Court ex parte B [1996] 1 AC 487; [1996] 1 FLR 513;
R v Cox and Railton [1884] 14 QBD 153;
Re L (Police Investigation : Privilege) [1997] AC 16; [1996] 1 FLR 731
S County Council v B (FD) [2002] 2 FLR 161.
For privilege against self-incrimination see :
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380.
A Chief Constable v A County Council [2002] EWHC 2198 (Fam).
2 See also Thorpe J. in Essex County Council v R (Note) [1994] Fam 167, 168-169; Ward J. in Oxfordshire County Council v P [1995] Fam 161, 166; Charles J. in S County Council v B [2000] 2 FLR 161, 183/A-B.
3 Children Act 1989, s.98(1).
4 Grove J., Pollock and Huddleston, BB., Lopes, Hawkins, Stephen, Watkin Williams, Mathew, Day and Smith, JJ.
