Mother's application to speak to new solicitor without lifting in camera rule dismissed by District Court.

[2015] IEDC 09

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

A

FIRST RESPONDENT

-AND-

G

SECOND RESPONDENT

IN THE MATTER OF Child K, Child L, and Child M.

[Note: This version of the original decision delivered is PREPARED for THE PURPOSE OF Publication. Any changes from to

the original are intended only to be as to form and not as to substance, AND ARE for the purpose of reducing the

possibility of identification of the children.]

1. This is an application by the first named respondent mother, A, pursuant to section 47 of the Child Care Act 1991 [hereinafter

referred to as the 1991 Act], for directions on the following question affecting the welfare of the children:

“to authorise the respondent [mother] to speak to her solicitor [named] as appropriate of matters arising in the context of

the within proceedings which may be relevant to her dealings with [her named solicitor] in the context of obtaining legal

advice.”

2. Section 47 of the 1991 Act provides as follows:

“Where a child is in the care of the Child and Family Agency (CFA) , the District Court may, of its own motion or on the

application of any person, give such directions and make such order on any question affecting the welfare of the child as

it thinks proper and may vary or discharge any such direction or order.”

3. The application was originally dated for 2014, and was initially returnable the following month. The application was served on the

Child and Family Agency, the Guardian ad Litem, and on a Superintendant of a Garda Station, a non party to the above entitled

proceedings. By direction of the Court, the application was also served on a Statutory Child Sexual Abuse Assessment Unit

[hereinafter referred to as the “Assessment Unit”], another non party. The second respondent has effectively taken no part in the

proceedings.

4. The application was adjourned on two further occasions and the application was briefly opened. The Child and Family Agency and

An Garda Síochána stated that they were not objecting to an order in the terms of the application. The Guardian ad Litem stated

that she had no position with regard to the application. The Assessment Unit objected to the Court granting the application, and

briefly outlined the nature of its objection. The respondent mother indicated that her principal submission would be that it was in fact

unnecessary for her to apply at all, i.e. that she was at all times entitled as of right to do that which she sought authority to do.

Reserving that position, the respondent mother briefly outlined her possible replies to the objections of the Assessment Unit. All

parties and non parties were invited to furnish written submission if they so wished and the matter was further adjourned for full

hearing. Written submissions were received from respondent mother and from the Assessment Unit. The matter was not reached on

the adjourned court date, and was further adjourned when the application was heard. Oral submissions were made by the respondent

mother and the Assessment Unit, in addition to the written submissions received. The remaining parties, the Guardian ad Litem and An

Garda Síochána made no submission.

Background:

5. The procedural history of the substantive Child Care Act proceedings between the parties has been set out in detail in the

substantive decision on the application by the Child and Family Agency for Care Orders under section 18 of the 1991 Act. It suffices

to say here that the said section18 proceedings were very protracted and very complex. This application was heard when the

section18 proceedings were part heard, one week prior to the resumption of the substantive hearing of the section 18 proceedings.

6. The Assessment Unit provided 2 reports to the Child and Family Agency, at the request of the Child and Family Agency. In brief,

those reports set out their assessment of the credibility of certain allegations of sexual abuse made by some of the children, and their

assessment of the therapeutic needs of the children. In the context of preparation of their assessment and reports, the Assessment

Unit interviewed two of the children who are the subject matter of the section 18 Care Order proceedings, and the interviews of the

children were recorded. Neither the reports nor the interviews recorded on the DVDs were prepared or carried out on the order of the

Court.

7. The reports prepared by the Assessment Unit were furnished to the parties and the Guardian ad Litem. By order of the Court

(which order had been opposed by the Assessment Unit), DVDs of the interviews were made available to the respondent mother,

subject to the conditions contained in the order. The reports and the DVDs, and what was said by the children in the course of the

interviews, all formed part of the evidence in the substantive hearing of the section 18 Care Order proceedings.

8. Given the nature of the evidence provided by the Assessment Unit, and the nature and status of the Assessment Unit as a unit

assessing children who are reported to have been subjected to sexual abuse, the nature of the orders already made against the

Assessment Unit and the nature of this section 47 application, I was satisfied that the Assessment Unit, a non party, ought to have

the opportunity to make submissions in respect of this application.

9. The respondent mother has been represented in the substantive section 18 Care Order proceedings by the Legal Aid Board. As I

understand it, her legal aid certificate provides for her representation in the substantive section 18 Care Order proceedings only. It

does not provide for her to receive advice or representation in respect of criminal matters. As I understand it, if the respondent

mother was entitled to receive legal aid in respect of representation in a criminal matter, her present legal team in the substantive

section 18 Care Order proceedings would not be in a position to provide such representation, nor would they be in a position to

provide her with advice in respect of any criminal matter. If she wishes to obtain advice regarding any criminal matter, she will

therefore have to instruct a solicitor, other than the solicitor, and/or the Law Centre on record in the substantive section 18 Care

Order proceedings.

Facts:

10. At the date of hearing of this application and I understand to date, the respondent mother has not been charged with any

criminal offence arising from the allegations which were assessed by the Assessment Unit. She has however been arrested and

questioned in respect of these matters. I have no opinion or information as to whether she will or will not be charged. Nevertheless I

am satisfied that it is not unreasonable for the respondent mother to apprehend that she may face criminal charges.

11. It was stated by the respondent mother in her submissions and in the course of the hearing of this application that she sought

only to be able to speak with a named solicitor of matters arising in the substantive proceedings which might be relevant to her

dealings with the named solicitor in the context of obtaining legal advice regarding criminal matters. She specifically stated that she

was not applying at present to have any reports, DVDs or other documents made available to that named solicitor.

12. There has been discussion in the course of the hearing of the necessity or otherwise of the respondent mother obtaining advice

regarding criminal matters when she has not in fact been charged and there are no criminal proceedings in being. The Assessment Unit

submits that there is no reason for the respondent mother to obtain such advice unless she is charged. I do not accept this. It would

be a matter for an experienced criminal practitioner to consider what matters might be considered and advised upon in the context of

reasonable apprehension of being charged. It occurs to me that the issues of gathering evidence that might be used in defence and

preservation of evidence are such matters, and that those matters may be of considerable significance where there may be a

considerable lapse of time between the alleged occurrence of any alleged incident and the bringing of charges, which would clearly be

the case here.

13. The respondent mother’s first submission was that, although she is the applicant for directions, the Court should make no order on

the basis that the direction of the Court and specifically a direction lifting the in camera rule is not in fact necessary. It appears

strange that the applicant for directions should in fact apply for no directions to be made. The respondent mother stated that she

wished to have guidance from the Court as to whether she could proceed to speak with her criminal solicitor in the manner and for

the purpose set out in the application and in her submissions, without risking breaching the in camera rule and thereby exposing

herself to sanction. She further stated that if the Court found that it was necessary for the Court to give directions to enable her to

speak to her criminal solicitor, then she wished for the Court to give such directions. I accept that in the circumstances of the case,

and the respondent mother’s particular personal circumstances, and the apparent novelty of the point in issue that it is reasonable to

bring the application and reasonable to apply that in fact no direction be given.

14. The respondent mother submits that by virtue of the nature of the relationship of solicitor and client, and in particular the duty of

confidentiality owed by the solicitor to the client, it is unnecessary to apply to have the in camera rule lifted – essentially because

the rule does not apply.

Law:

15. As set out in the respondent mother’s submissions, the purpose of the in camera rule has been described by Barr J., in Eastern

Health Board v Fitness to Practice Committee [1998] 3 IR 399, at pp 428 and also set out in the Judgment of Mr. Justice Birmingham

in HSE v McAnaspie [2012] 1 I.R. 548 at para. 30 as follows:

“The primary purpose of the in camera rule in such cases is to provide protection for minors from harmful publicity

arising out of the disclosure of evidence and other related matters in protected proceedings”.

16. It appears to me that in order to prevent such harmful publicity, the in camera rule operates (subject to statutory exceptions) to

prevent any publication without leave of the Court, while the Court has discretion to lift the rule in appropriate cases.

17. Therefore, it appears to me that the only way that it may be said that the in camera rule does not apply is if the act of the party

does not amount to publication.

18. In Martin v Legal Aid Board [2007] 2 IR 759, at para. 55 of the Judgment, Laffoy J., stated:

“However, in my view, the real issue which arises in relation to files relating to family law matters is whether the first

defendant, and an authorized person assigned by the first defendant, has a sufficient connection with the parties to the

proceedings, the legally aided client, to be within the ambit of his private, that is to say non-public, sphere for the

purposes of the in camera rule. The court was not referred to any authorities on this point, but it seems to me, as

urged by Counsel for the first defendant that as a matter of common sense they must be”.

This paragraph is referred to by respondent mother in her submissions, with an acknowledgement that it is obiter. I note that Laffoy J

refers to [a client’s] “private, that is to say non public, sphere for the purposes of the in camera rule.” It follows from the remainder

of that paragraph and the next paragraph, that disclosure of evidence from a protected proceeding to a person who falls within a

client’s “private sphere” is not in Laffoy J’s opinion subject to the in camera rule.

19. The respondent mother goes on to submit, at paragraph 19 of her submissions, as follows:-

“Although the logic applied here relates to the internal workings of a State organisation, subject to statutory duties and

provided with statutory powers, and therefore extends the in camera rule to the solicitor on record and those

authorised within the organisation to monitor work on the files it is submitted that this logic should also be applied to the

agent of the Applicant herein, he having a sufficiently close connection to the Applicant, the relationship being one

governed by the principle of confidentiality and the right of access to legal advice being a Constitutionally protected

right”.

The respondent mother also made oral submissions in this regard. I understand that the essence of this submission to be that

disclosure of evidence [in the limited way that is sought by mother] within the client’s “private sphere” is not subject to the in

camera rule, and that any solicitor instructed by the respondent mother would come within the mother’s “private sphere for the

purposes of the in camera rule”.

20. Laffoy J states that “the court was not referred to any authorities on this point,” – nor was I (apart from the Martin case

quoted).

21. There is no definition of “private sphere for the purposes of the in camera rule”. I am satisfied that the concept of a client’s

“private sphere for the purposes of the in camera rule” is not restricted to the solicitor on record and authorised officers of the legal

aid board. I do not propose to attempt to define the entire content of a client’s “private sphere for the purposes of the in camera

rule”.

22. When a client seeks advice from a solicitor, the client is entitled to confidentiality. That confidentiality can only be waived by the

client. In general terms the solicitor has no right or entitlement to breach that confidentiality. The solicitor is an agent of the client.

The relationship of solicitor and client is a fiduciary relationship. The solicitor may only do whatever the client authorises him/her to do

with any information provided. It is difficult to imagine what could be less in the “public sphere” or more in the “private sphere” of a

client.

23. The Assessment Unit submits that

“the Martin case is one involving only sharing within the solicitors on record for parties in family law proceedings, and is

based on a specific and net statutory exception to the in camera rule, leading to it being of no relevance to the question

posed herein, in particular, it cannot be interpreted as meaning that to speak with a solicitor, not on record in the in

camera proceedings in question, is not prohibited by the in camera rule”.

I do not accept this submission. I do not feel I can ignore the opinion of the High Court, albeit obiter, where I believe that opinion to

be very relevant to the very question at issue here. Certainly the case dealt with specific factual matters as stated, as do all cases –

this does not exclude it from possible relevance to the issues in this case, particularly where there is little or no other guidance and

where a logical comparison is possible.

24. The Assessment Unit did not refer me to any case which deals with the question of disclosure by a party to proceedings of

evidence from the protected proceedings to a solicitor not on record, for the purposes of obtaining legal advice, or dealing with the

issue of the existence of or the membership of “a private sphere for the purpose of the in camera rule.” The cases which were

referred to were largely from other jurisdictions, and mostly dealt with applications by third parties for disclosure of evidence from

protected proceedings.

25. Where the cases dealt with applications by parties to protected proceedings (e.g. reference to Re X and Other (Wardship:

Disclosure of Documents) [1992] 2 WLR 784, quoted at paragraph 8 of the Assessment Unit proceedings) as follows:

(p. 787) “This dispensing power may be exercised in favor of a party to the child welfare proceedings who wishes to

make use of information relating to those proceedings in other litigation to which he is a party: see Brown v. Matthews

[1990] Ch. 662, where the Court of Appeal allowed a party to divorce proceedings in the county court in which issues of

child custody had arisen to make use of a welfare officer's report prepared for the purposes of those proceedings in an

entirely separate Chancery action maintained by that spouse against his former father- in-law regarding the proceeds of

sale of the previous matrimonial home…There are, for example, recent instances of it being exercised in favor of a third

party for the purpose of collateral criminal proceedings: see In re S. (Minors) (Wardship: Police Investigation) [1987]

Fam. 199 and In re F. (Minors) (Wardship: Police Investigation) [1989] Fam. 18, where leave was given for information

relating to wardship proceedings in the form of video tapes of diagnostic interviews and medical records in one case,

and transcripts of the judgment and evidence in the other, to be made available to the police for the purpose of criminal

proceedings against alleged sexual abusers of the wards concerned.”

The issue of dispensing with the UK equivalent of the in camera rule was specifically in respect of “a party…who wished to make use

of information …in other litigation to which he is a party”. The application herein is not to “make use of“ information in other litigation

– that might very well require an application to be made to lift the in camera rule, however I do not have to decide that.

26. The further extract from Re X and Other, quoted at paragraph 9 of the Assessment Unit submissions as follows: -

“A judge dealing with such an application has an unfettered discretion to grant or to refuse it. He will place the interest

of the minor in the forefront of his considerations. He will also give considerable weight to the public interest in ensuring

that frankness shall prevail in such proceedings by preserving confidentiality. The public interest in upholding the law of

the land by providing relevant evidence for use in other legitimate proceedings must also be considered together with all

the other circumstances of the case",

This refers to applications by third parties, as is clear from reading the preceding paragraph if the report of that case.

Decision:

27. I am satisfied to accept the respondent mother’s submission that a solicitor from whom advice is sought [in the limited way that is

sought by the mother] falls within her “private sphere for the purposes of the in camera rule”.

28. It does not appear to me that the purpose of the in camera rule is circumvented or defeated by the respondent mother disclosing

evidence in the limited way that is sought by the mother to her named criminal solicitor. The respondent mother remains subject to

the in camera rule, and is not permitted to otherwise disclose evidence from the protected proceedings. Nor is she entitled to waive

her confidentiality in the solicitor client relationship to allow the instructed solicitor to disclose such evidence, as such a waiver or

instruction by her to her agent would be a breach by her of the in camera rule and be subject to all of the sanctions that can be

imposed.

29. While it does not strictly arise in light of the conclusion I have reached above, I refer to the further extract from Re X and Other,

which is quoted at paragraph 20 of the Assessment Unit submissions, as follows:-

“The newspaper is therefore entitled to begin with the advantage that its application should be viewed benevolently, and

not defensively, and to have its appeal to important public advantages such as press freedom and informed justice

taken seriously. Nevertheless, when all factors are given their proper weight and all relevant circumstances are taken

into account, I am left in very little doubt that this is an application which ought not to be allowed to proceed. It is too

wide-ranging, and potentially too disruptive. It may not obviously involve any disadvantage to the wards and ex-wards

whose files would be open to inspection, but it equally offers them no positive advantage. The certain injury which it

would do to the family jurisdiction outweighs the unproved and uncertain advantage which it might secure in advancing

the prospects of a fair and informed trial in the Queen's Bench jurisdiction”.

I am of the view that a full reading of that case and its conclusions disclose that the primary reason for which the application (by a

third party) was refused was because it was “too wide ranging and potentially too disruptive”, and that the following comments are

fact specific to that case and not a general proposition.

30. In the Martin decision, Laffoy J. states as follows, at para. 56:

“If that conclusion is incorrect, as regards each case file which the first defendant would wish to access which contains

in camera material, an application would have to be made to the relevant court for the authority to provide the

information to the authorized person”.

31. If my conclusion is incorrect, it follows that a party to proceedings in this Court would have to apply to this Court to have the in

camera rule lifted to allow him to discuss any aspect of the within proceedings, including what is referred to in the instant

application, with a solicitor other than his solicitor on record. If, for instance, a party to proceedings wished to change solicitor, that

party in advance of having any discussion or consultation with the proposed new solicitor (beyond perhaps a bare will you act for me

in connection with a case that I can’t tell you anything about?) would have to apply to this Court to have the in camera rule lifted

for the purpose of approaching the proposed new solicitor. If he wished to have legal advice about how to go about making the then

required application to lift the in camera rule, he would have to get that advice from the solicitors on record, or apply to have the in

camera rule lifted for the purpose of his being advised as to how to go about applying to have the in camera rule lifted, etc.. This is

not the current practice. It is commonplace for parties to change solicitors in Child Care Act 1991 proceedings, without reference to

the Court. It appears to me that that practice is supported by the principle that the proposed new solicitor, on receipt of whatever

instruction given by the client, comes within the client’s “private sphere for the purpose of the in camera rule”.

32. The Assessment Unit, in its submissions, places considerable emphasis on the position of the solicitor “on record” as opposed to a

solicitor not on record. I accept that the solicitor on record is subject to the in camera rule by virtue of being present in Court to

hear the evidence, by receipt of pleadings, reports etc and is not entitled to disclose etc. However, independently of that, the

solicitor on record is also bound by the solicitor and client relationship and confidentiality, and on that basis alone could not disclose,

in the same way as the solicitor not on record. Put another way, the solicitor on record is doubly bound, the solicitor not on record is

only singly bound - there is however no difference in the strength of the bind.

33. Neither the respondent mother nor the Assessment Unit referred to the views and wishes of the children. Neither the respondent

mother nor the Assessment Unit referred to the best interests of the children, except in a general way. No evidence was given in this

regard. As this is an application under the Child Care Act 1991, I must consider the best interests of the children. I do not apprehend

that the respondent mother speaking to her named criminal solicitor for the limited purpose set out will have an adverse affect on the

health development or welfare of the children or any of them. I accept that her doing so will add to the already regrettably large pool

of people who have some knowledge of the case and the issues in it, but I do not regard that extension of the pool as having any real

risk of detriment to the best interests of the children or any of them.

34. With the exception of paragraphs 1 – 6, the submissions of the Assessment Unit deal with the issue of whether the in camera rule

ought to be lifted or not. Parts of the respondent mother’s submissions also deal with this issue. As I have concluded that mother

does not require to have the in camera rule lifted in order to do that which is intended, I do not need to address the circumstances in

which the in camera rule might be lifted.

35. I will make no order on the application.

Brendan Toale

District Court Judge