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D (A Child) [2011] EWCA Civ 684

Court of Appeal. Waiver of professional privilege in care proceedings in respect of the circumstances leading to the change of a party’s witness statement and the order for further disclosure arising from that waiver.

These were care proceedings where a 6-week-old child (L) suffered fractures of his arm, leg and ribs.  At first, the mother (M)'s evidence was that she did not know how L had come by his injuries, the father (F) was a good father and she had not witnessed him causing injury.  Subsequently F and M split up.  M made a further witness statement for the fact finding which was described as a "paradigm shift of position".  It described an incident where F may have caused the injury and alleged that F was violent.  In her witness statement, M gave a detailed explanation of her change of heart, which she indicated evolved throughout a series of conferences with her legal team.  She revealed she was given advice, and also the nature of that advice, as well as a step-wise encouragement to tell her story.  She exhibited notes that she had made during the course of those conferences.  F asserted that M had waived her legal professional privilege in a way which justified him seeking disclosure of the attendance notes made by her solicitors and counsel at the various conferences.  It was the only way the court would be able to decide whether M was reliable, or whether she was led by her legal team to say things that pleased them.  The judge at first instance found that W had waived privilege, and fairness inevitably led to the need for full disclosure in order to have a full account of how M's witness statement had evolved.  Permission to appeal was granted.

At the appeal it was conceded that M had waived privilege.  The appeal turned on "whether in the light of what had been disclosed, and the context, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party having a partial and potentially misleading understanding of the material" (Brennan v Sunderland Council [2009] I.C.R 479 at [63]).  It was argued on behalf of M that:

i) The court should have particular regard to unique nature of care proceedings – such a change in position is not unusual.

ii) Legal privilege is part of this vital process, which should not be invaded because it plays a beneficial role in the administration of family justice.

iii) Solicitor and counsel are the only providers of confidential advice to the family litigant.

iv) Balancing fairness in family cases is more complex than in other civil cases, and legal professional privilege is likely to be the only area within litigation where a parent can enjoy complete privacy so it demands the widest respect.

v) The judge had failed to address the actual unfairness of the disclosure.

The appeal was dismissed for the following reasons:

1. The appeal did not challenge the way in which the judge had directed himself.  The Court of Appeal found it to be a very good judgment.

2. M waived her right to privilege because her witness statement could not be said to make "only glancing reference" to the conversations with her counsel and solicitors.

3. It mattered not whether M intended to waive privilege – viewed objectively she clearly did so.

4. Once it was conceded that there had been a waiver, it mattered not whether it was by a solicitor on behalf of M or in addition to a waiver by M.  The waiver was contained in the words of M's witness statement.  The effect of those words, objectively construed, prevails notwithstanding a) that they were drafted by her solicitor, and b) that neither M nor her advisers appreciated that they would amount to a waiver.

5. To say no more than "I am acting on the advice of my solicitors and counsel" will not ordinarily justify further disclosure of the advice or of the circumstances of a change of heart.

Legal advisers should be aware of the fact that the advice they give may prompt a change in heart and they should be on guard to protect their client from revealing that advice either in written evidence or when giving oral evidence in court.

Summary by Martina van der Leij, barrister, Field Court Chambers


Neutral Citation Number: [2011] EWCA Civ 684
Case No: B4/2011/0887
His Honour Judge Barnett
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14 June 2011

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 D (A Child) 

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Mr A. Hayden QC and Mr N. Montaldo (instructed by Hibberts LLP) for the appellant
Miss L. Meyer QC and Miss C. Grundy (instructed by Poole Alcock LLP) for the respondent
 Mrs D. Gosling (instructed by Forshaws Davies Ridgway LLP) for the Guardian

Hearing date: 10th May 2011
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Lord Justice Ward:
1. This is a care case with an interesting and unusual twist to it.  L is a little boy who will be one year old next month.  When he was just 6 weeks old he suffered a fracture of the mid-shaft of his left humerus, fractures of his ribs on both his left and right side and a fracture of the left tibia.  The local authority obtained interim care orders and arrangements were in hand for His Honour Judge Kevin Barnett to hold a fact-finding hearing to establish the perpetrator, or the perpetrators, of these injuries. 

2. In her witness statement dated 13th January 2011 L's Mother said that she did not know how L had received his injuries.  She did explain:

"I could see that [the Father] was unstrapping L from his buggy.  L was still screaming.  [The Father] told me that he had to pull L's arm as it was stuck between the fabric and the metal side of the buggy.  [The Father] lifted L out of the pushchair and I took L off [the Father].  L was still screaming."

She added that the Father was "a good father willing to do anything for L" and she repeated:

"I have not witnessed anyone hurting L.  I know that I have not caused any injury to L.  If [the Father] has caused any injury to L then I have not witnessed that and he has not told me that he has injured L."

3. The Father's description of the pushchair incident was that:

"I … found that, to my horror, L's arm was trapped in the stroller in between the fabric and the metal frame.  The rest of L's body was struggling and thrashing around and his face was red with temper and distress.  I carefully removed L's arm and gave him a cuddle.  L stopped crying approximately 2-3 minutes later.  [The Mother] fed him, and he fed well."

4. His Honour Judge Barnett, who has the conduct of this fact-finding hearing, directed that a case management conference be held on 25th February to ensure all was in order for the hearing fixed for 7th March 2011. 

5. The parents having separated, the Mother applied without notice on 24th February 2011 for an injunction restraining the Father from molesting her, alleging that he had treated her with violence, had threatened her and on 15th February 2011 had forced her "into having sex with him".  She also alleged that the Father had threatened to kill her if she spoke to her solicitor "about what has happened with L".  Judge Barnett granted her the injunction.

6. On the same day, 25th February 2011, Mother filed a further statement for the fact-finding enquiry in which she gave a very different explanation of L's injuries.  She said:

"10.  I heard L screaming.  I … ran into the dining room and I saw [the Father] repeatedly yanking L's arm.  The pushchair was by the back wall in the dining room ...  [The Father] was at the bottom left of the pushchair.  He had hold of L's left wrist in his right hand and he was pulling L's arm out sideways.  He did this more than one time.  L was screaming.  It was a painful scream.  I ran in and saw this and [the Father] shouted, "Shut up, stop crying, shut the fuck up now".  … 

16.  I just cuddled L and I was crying.  I ran a bath for L and I and I undressed L.  His left arm was red and he had finger marks on his left wrist.  …

17.  [The Father] was knocking on the door and I told him to "fuck off".  Then he said, "It's not my fault, he caught his arm and I was just pulling it out." …"

7. So here we have what Judge Barnett described as "a paradigm shift" of positions.  That may not be altogether unusual.  It not infrequently happens in this kind of case that one of or both parents do eventually, especially after prompting and prodding by experienced solicitors and counsel, face the overwhelming case against them and admissions of culpability are made once it is appreciated that a full and frank confession does not necessarily lead to a permanent removal of the child from the parent or parents.  Much will depend on the assessments of the parents made in the light of their admissions. 

8. But this case is, as I said, unusual and therefore interesting.  The unusual feature is that the Mother gave an explanation for her change of heart which prompted the Father into asserting that in doing so she had waived the professional privilege which exists between solicitor and client so as to justify him in seeking disclosure of the attendance notes made by her solicitors and counsel at the various conferences and meetings leading to the preparation of this witness statement of 25th February.  Leading counsel, Miss Lorna Meyer Q.C. for the Father and Mr Anthony Hayden Q.C. for the Mother were brought in to argue this interesting point.  In a careful reserved judgment His Honour Judge Barnett found for the Father and on 24th March 2011 ordered that the Mother should serve all contemporaneous notes made by counsel during the conferences with Mother and all contemporaneous notes which were made by her solicitor during their meetings in the period from and including 21st January 2011 until 23rd February 2011, such disclosure to include any notes made by her solicitor during the conferences with counsel.  He gave permission to appeal.

9. This unusual turn of events was founded upon the way in which the Mother introduced the change of her position.  She began in paragraph 2 with an apology to the Court for the delay in making her statement:

"I am afraid to say that that has been a very long and a very difficult process for me.  I have been asked many times by the Police, by Social Workers and by my solicitor Mr Tony Dimelow how my son came by the injuries that the Court has set out before them, in particular, how he came by his fractured arm.  It is fair to say that before now I have not told them everything I know. 

3.  Before the hearing on 21st January 2011 I had met my solicitor, Mr Dimelow a number of times and I had begun to trust him, and he is someone who I am able to talk to.  On 21st January 2011 that was the first time I had an opportunity to meet my barrister, Miss Lorraine Cavanagh.  Both she and Mr Dimelow spent some time talking to me and explaining that the consequences of the findings of this Court might make in respect of L's injuries.  Indeed, Miss Cavanagh spent some time making it plain to me that unless the Court was able to get to the bottom of what actually did happen to L (she indicated that that would have to be the absolute truth), then the consequences might be that I would lose L, that L might be placed with a family for adoption.  My solicitor and my barrister explained to me that I would have to effectively make a choice, that choice would have L on the one side and on the other myself, being loyal to another person.  I have to choose L and ever since that hearing I cannot stop thinking about what they said and how serious it was.

4.  My solicitor arranged for me to meet with my barrister and with him again after the hearing and he arranged at first one consultation at his offices.  I could not bring myself to go.  The problem was that [the Father] had said he does not want me to go to any conferences because he was far too worried about what I might say to my solicitors and my lawyers and he would not let me go to the conference.  I therefore cancelled the conference. …  The solicitor kindly arranged another conference with the barrister and I was very very scared about what I might say at the conference and whether I would tell them what I knew, in addition to that [the Father] didn't want me to go and so therefore I cancelled that conference with my solicitor and barrister also.  In all that time, I had not stopped thinking about what the barrister had said, that I might lose L to adoption and that somebody had to choose L or he might be lost.  I have been very frightened about the consequences of telling everything to the Court, in particular the consequences to me of having told the Police, the Social Worker and my solicitor other things in the past that were not necessarily accurate or true.

5.  My solicitor arranged a conference for me on 9th February 2011 whereby the barrister would come to his office in Crewe, and he indicated to me that was going to become my last opportunity as he could not keep arranging conferences for them to be cancelled.  In the week before the conference I found out that [the Father] had ordered goods through a catalogue to the value of about £1,000 in the name of a friend of mine, and a number of our friends had fallen out with him about this.  I had split up from [the Father] and we had separated.  [The Father] however was still living at my mother's home and I had moved out and was staying with friends.  Part of the reason for us splitting up was I could not stop thinking about the importance of getting to the bottom of what happened to L.  In the time since L had been injured I had been asking [the Father] if there was anything that I did not know about what he had done to L (even if it was done accidentally) and he would always have a go at me for asking him that question.  But [the Father] has never actually asked me if I have ever done anything to L.

6.  By 9th February 2011 I was therefore not living in my mother's house with [the Father] and I had the support of my friends.  I felt a bit more confident about speaking to my legal team about some of the issues and things that I was worried about.  When I went to the conference I wasn't planning on telling my solicitor and barrister everything that I knew because I was too scared to do so and I have set out in this Statement the reasons why I was so terrified.  But as I started to tell them things it all just came out and they were asking questions that made it easier to tell them what had happened and I demonstrated what I saw on a doll.  I became so distressed and upset that I couldn't really carry on telling them very much.  I could not speak any more because I was sobbing and we had to stop the conference and have another meeting a few days later to see if I could give them any clearer or better explanations about what happened.  My solicitor Mr Dimelow met with me a couple of days later and I told him more detail about what I had seen and he asked me lots of questions, to clarify the order of events.  Unfortunately, on that day I was so distressed by something awful that had happened the night before, which I detail in this Statement a bit further, that I could not think properly and I could not go through all the paperwork with Mr Dimelow that we had to on that day (in particular the phone records and some of the interviews).  Because I was so upset about the fact that my mum was sticking by [the Father] and would not believe me and that my friends might have trouble brought to their door if I carried on saying what had happened, I was very frightened about making a decision to let Mr Dimelow tell the other parties in the Statement about what had happened.  I genuinely fear that [the Father] will kill me if I tell anybody about what I saw and what has happened in our relationship, and what may have happened to L, and that feeling of being terrified I cannot get over.  Mr Dimelow suggested that we bring the meeting to an end and have another conference with counsel to see if we can make a decision together as to how to deal with the information that I have given them.  Miss Cavanagh came to Mr Dimelow's offices again on 21st February 2011.  I have been struggling to cope with the disclosure I have made to my solicitor and to my barrister and by the time of that meeting I was regretting ever having said anything to anybody.  But with the support of my legal team and their assurances that there are things that can be done to protect me, I agree that I should do my best for L and tell the Court everything that I know to make sure that he has the best chance of growing up knowing who hurt him and that his mummy did not."

Later she said:

"42.  When I attended the conference with my barrister and my solicitor on 9th February, my barrister asked me about sexual violence.  I was too upset to respond.  My barrister asked me if I could write it down and I nodded.  I was given a pen and paper and my solicitor and barrister left the room and I wrote the note that is attached to this Statement marked 'NLD1' and when I had finished it I indicated that my solicitor and barrister could come back into the room."

In that written note she sets out acts of physical and sexual violence she alleges she has suffered at the hands of the Father and how scared of him she is.

10. Her statement concludes:

"44.  I attended at my solicitor's office again on 16th February 2011.  I was extremely upset and I said that I was scared and I wasn't going to Court.  I was so upset I couldn't say what I wanted to say to my solicitor.  He therefore asked me if I could write it down and he left the room and gave me some time to write out what I wanted to say.  The exhibit hereto marked 'NLD2' is a copy of the note that I wrote and I can confirm that the contents of the note are true to the best of my knowledge and belief.  I was petrified that [the Father] will try and kill me as soon as he knows that I am telling the truth about what he did to L.  I remain petrified and I am struggling to cope at the moment …"

11. In that note she speaks of his threats to kill her, to drag her to prison with him but at the same time having some love for him.  The note may well be thought to reveal her considerable emotional turmoil.

The judgment under appeal
12. In his reserved judgment His Honour Judge Kevin Barnett carefully analysed the law relating to legal professional privilege.  There was no dispute that conferences between a client and counsel and meetings between a client and his solicitors are confidential and as such attract legal professional privilege.  This confers on the client a substantive absolute right of fundamental importance to the administration of justice as a whole.  It can only be waived by the person, the client, entitled to it.  Whereas litigation privilege may have no part to play in proceedings under the Children Act, legal professional privilege is as applicable to these proceedings as it is to ordinary civil or criminal proceedings. 

13. Fairness lies at the heart of waiver and its consequences.  It mattered not whether the mother intended to waive privilege: viewed objectively she clearly did so in respect of the matters contained in her statement of 23rd February.  As the judge eloquently put it:

"She need not have mentioned anything beyond the fact that conferences were held on particular dates.  However, not only has the mother taken the other parties and the Court to the doors of the conference room, she has taken the reader of her statement into that room.  And the journey has been undertaken more than once."

14. For the judge the real issue was, therefore, whether as a consequence of that waiver, the application of the principle of fairness demanded disclosure of the material which the father sought so as to prevent the court and the party's adversary being given only a partial picture: the court should not allow cherry picking. 

15. In my paraphrase of his conclusion, he held that fairness did inevitably lead to the need for full disclosure  because without producing the whole pie, it would be impossible to decide whether or not the mother, cornered as she was, had simply behaved like little Jack Horner, pulled out a plum, and said, "What a good girl am I".  Having an unexpurgated account of how the witness statement evolved was the only fair way to meet the Father's concern that the Mother may have been led by her lawyers into saying things to please them. 

16. He added as a "coda" that he had some reservations about the fact that both the Local Authority and the Guardian had taken a neutral stance in this cut-throat contest between the parents although he could understand that the Guardian felt it was the tactful approach in order the better to work with them.  Because he appreciated that the issues with which he had to grapple might be "of significance beyond the bounds of this case", he granted permission to appeal. 

17. The parties have again been ably represented by Miss Meyer and Mr Hayden and I am grateful to them for their cogent submissions.  It has always been common ground that the Mother's meetings with her solicitor and the conferences with counsel attracted legal professional privilege which only she could waive.  After anxious deliberation, Mr Hayden now accepts that the Mother did waive that privilege because her witness statement could not be said to make only "glancing reference" to the conversations with counsel and solicitors.  Mr Hayden was absolutely right to make that concession.  The Mother had revealed not merely that she had been given advice but also the nature of that advice.  Thus she revealed how the questioning "made it easy to tell them what had happened and I demonstrated what I saw on a doll".  The solicitor asked her "lots of questions to clarify the order of events".  It was "with the support of my legal team and their assurances that there are things that can be done to protect me" that she agreed to "tell the court everything I know".  She has undoubtedly waived the privilege that would ordinarily leave the advice she was given and the manner in which her statement was extracted from her sacrosanct and inviolate.

18. Although he conceded the waiver point, Mr Hayden did not abandon the fourth main submission advanced in his skeleton argument that the lawyers could not be deemed to have waived the Mother's privilege in circumstances where she had not been advised, either as to the nature of privilege or the potential consequences of its waiver or partial waiver.  He did not press the matter in his oral argument and relied on those written submissions.  There is nothing in this point.  Once it has been conceded that in the circumstances of this case there has been a waiver, then it matters not whether it was a waiver by the solicitor on behalf of the client or in addition to the waiver by the client herself.  Here the waiver was made by the client for it is the words of her witness statement which lose her the protection of professional privilege.  The effect of those words, objectively construed, prevails notwithstanding the fact that they were drafted by the solicitor and not withstanding the fact, moreover, that neither she nor her advisers appreciated the consequence those words would have. 

19. Thus the appeal turns on the "fundamental question", as my Lord, then Elias J. expressed it in Brennan v Sunderland Council [2009] I.C.R. 479 at [63]:

"whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material."

20. Mr Hayden submits that in arriving at the answer the court must have particular regard to the unique nature of care proceedings.  He adopts the judge's description of this being a "paradigm shift of position" but he submits that this shift frequently occurs in this kind of case.  At first the parent cannot or will not accept the fact of non-accidental injury.  There will invariably be investigations by the police and assessments by the social workers and the parent can claim no confidentiality there.  Often reality and the need for truth often dawn only once all the evidence is placed before the parent and he or she  is subjected to a sympathetic but firm, detailed probing and prodding by experienced solicitors and counsel.  That is what frequently results in a change of attitude after months of denial.  The sanctuary of confidentiality in the solicitor's office and in counsel's chambers is part of a vital process which should not be invaded for it serves too beneficial a place in the administration of family justice when viewed overall.  The solicitor's office and counsel's chambers are the only places where this family litigant has access to confidential advice and this is precisely why the court should not unpeel this confidentiality any further.  He submits that balancing fairness in public law children's cases is more complex than in other civil litigation and the court should take account of the "subtle and complex" differences with other litigation demonstrated, for example, by the fact that:

(1) in care proceedings the client will often be in a far more disadvantaged position in the litigation than parties in civil litigation more generally (educationally, socially, financially, frequently intellectually and often, as here, in terms of their age and experience of life);

(2) the client will never have access to private, non-disclosable expert evidence upon which to take strategically based litigation decisions, litigation privilege, being in effect non-existent in care proceedings: see Re: L (A Minor) (Police Investigation: privilege) [1997] A.C. 16.

(3)  the client's litigation position in any event will be probed by and rendered vulnerable to an opposing party, the Local Authority, in a Core Assessment undertaken prior to the commencement of the proceedings before any expert evidence is solicited; 

(4)  in the proceedings themselves, a wide range of hearsay evidence is regularly admitted;

(5)  when judging litigation-based concepts of fairness, it is important to remember that privacy is frequently invaded by the need to disclose medical records and to be subjected to wide-ranging assessments.

21. Thus Mr Hayden submits that legal professional privilege 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.  Relying on paragraph 79 of Hooper L.J.'s judgment in R v Loizou [2006] EWCA Crim 1719 he submits that the judge's error is to fail to identify the "actual unfairness of the disclosure". 

22. Miss Meyer submits that the unfairness to the Father consists in his not being able effectively to cross-examine the Mother about her veracity and about the evolution of her change of heart without being able to see the factual premises on which the advice was given to her and the manner in which her account of the events unravelled.  Her primary point is that the balance was one for His Honour Judge Kevin Barnett to strike and this Court should not interfere unless it has been demonstrated that he was plainly wrong in reaching the conclusion he did. 

23. There is in my judgment no answer to Miss Meyer's primary point.  There is no challenge to the way in which the judge directed himself.  His analysis of the law has not been criticised in this Court (nor could it have been – it was a very good judgment) and it has not been necessary for us to expand upon the principles to apply in quite a troublesome area of the law.  He was well aware of the special nature of the Children Act proceedings with all its idiosyncrasies.  He was fully aware of the personal circumstances of this young mother.  As the judge charged with the burden of finding the facts relating to the injuries suffered by this baby, he was well placed to hold the balance of fairness between all parties and thus ultimately to serve the paramount best interests of the child.  His immediate task was to find the material facts relating to the child's injuries and identify the perpetrator. In choosing to explain her shift in position as a consequence of advice she was given, the Mother undoubtedly did elaborate on the nature of that advice and explain the need for sustained questioning and demonstrations with the doll to elicit her story.  It is, therefore, a legitimate concern that she might be saying what she believed her interrogators wished to hear rather than what she knew to be true.  The undesirability of breaching confidentiality must be balanced against the unfairness to the Father if the cloak that ordinarily concealed the discussions with her lawyers was not lifted.  Having made public, at least in part, the circumstances in which she bared her soul to her lawyers, she must be left bare for cross- examination. 

24. Far from persuading me that the judge was plainly wrong, I am satisfied that he arrived at the correct conclusion in this case.  It is a highly unusual case.  If it demonstrates that even experienced family lawyers were unaware of the full ramifications of waiver of professional privilege, then the case may be of benefit to the profession.  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.  Counsel and solicitors will be aware (or ought to be aware) of the fact that advice may have been given to prompt the change of heart or change of attitude and they should be on guard to protect their client from revealing that advice either in the written evidence or when giving oral evidence to the court.  Judges must also be astute to anticipate an unintentional observation which results in privilege being waived and must be ready to warn a witness of any such danger.  But on the facts of this case, the law is clear: privilege was waived and fairness demanded further full disclosure.  I would therefore dismiss the appeal. 

Lord Justice Rimer:
25. I agree.

Lord Justice Elias:
26. I also agree.