SIR STEPHEN BROWN P: The court has before it appeals from interlocutory orders made by his Honour Judge Harold Wilson at Oxford County Court on 11 October 1993. The relevant orders were made at a hearing for directions in care proceedings brought by the Oxfordshire County Council pursuant to s 31 of the Children Act 1989. The chronological history of this matter can be briefly stated. I am grateful for the assistance of a chronology prepared by the first respondent to the care proceedings, the principal appellant. The proceedings concern two girls aged 4 and 2 years of age. Their mother is the first respondent to the care proceedings. They are the children of different fathers. The father of the younger child, T, is the second respondent in the care proceedings. The father of the older girl, L, is the third respondent. The girls themselves are parties to the proceedings and are represented by a guardian ad litem. The mother has two older children, both boys, now aged 9 and 8 years respectively. They were both born to her and to her former husband, whom she divorced in 1987. The older girl, L, is the child of the mother by her second husband, the third respondent, from whom she separated in 1990. The younger daughter, T, is the child of her association with the second respondent. The mother presently lives in the same household as the second respondent with the two girls.
In 1992, the Oxfordshire County Council commenced care proceedings in respect of the two older boys on the ground that they were suffering, and were likely to suffer, significant harm, as a result of neglect. In February 1993, care orders were made in respect of both boys by a family proceedings court and the boys were placed with foster-parents. In June 1993, the older boy disclosed to his foster-mother that he had been sexually abused, inter alia, by his mother. She reported this, and both boys were subsequently interviewed separately by a child protection investigation team. The older boy repeated the allegations at a disclosure interview which was video-recorded. In July 1993, both boys were examined by a paediatrician, instructed by the social services department.
On 22 July 1993, the Oxfordshire County Council began care proceedings in respect of the two girls on the ground that they were likely to suffer significant harm, having regard to the matters which were alleged to have taken place with regard to the older boys. On 22 July 1993, a family proceedings court made interim supervision orders in respect of both girls, and meanwhile they remained at home in the care of their mother, subject to the supervision order. In September 1993, the family proceedings court transferred the care proceedings to the Oxford County Court.
At a directions hearing held on 28 September 1993, his Honour Judge Paul Clark made a number of orders by consent, including, at para 4, the following direction:
'The first and second respondent do have leave to disclose the video-recording of the interview of J and A [the older boys] dated 13 June 1993 and copies of documents in the matter held by the court to the consultant psychiatrist instructed on behalf of the first and second respondent, whose report shall be filed and served by 29 November 1993.'
At the same hearing, the judge gave directions that the guardian ad litem should also have leave to disclose copies of documents in the matter held by the court to a consultant psychiatrist to be instructed by her on behalf of the two girls. He directed that the guardian should file her report by 6 December 1993. He finally ordered that the matter should be listed for further directions on 11 October 1993.
On 11 October 1993, the directions hearing came before his Honour Judge Harold Wilson at the Oxford County Court. On that occasion, the first respondent, the mother, and the second respondent, the father of T, applied to the judge for a direction that cl(4) of Judge Paul Clark's order, which I have cited, should be amended by removing the requirement to disclose and file the consultant psychiatrist's report. Counsel for the mother also sought leave to consult a child psychiatrist with a view to commenting on the allegations made by the boys and also to commenting on evidence filed by the consultant child psychiatrist instructed by the county council. Counsel also sought leave for the mother to be allowed to disclose that material to an adult psychiatrist whom she proposed to consult, and further leave to disclose the case material to a paediatrician, whom she wished to consult. The second respondent joined in the mother's application to amend clause (4) of the order made by Judge Paul Clark on 28 September 1993. He also joined in the application for leave to disclose material to a paediatrician. These applications were all made upon the basis that if the leave sought were to be granted and reports consequently obtained, the respondents should not then be under any obligation to disclose the reports. In other words, they would be at liberty to withhold them, if they should prove to be unfavourable to their cases.
The county court judge was confronted with two conflicting decisions of judges of the Family Division of the High Court. They were, first, a decision of Douglas Brown J in Barking and Dagenham London Borough Council v O and Another [1993] 2 FLR 651, [1993] 3 WLR 493, and a decision of Thorpe J made subsequently and reported in The Times on 18 August 1993, in the case of Essex County Council v R [now reported at [1993] 2 FLR 826]. The decision of Douglas Brown J was, in fact, made on 12 March 1993. In that case the judge had been faced with applications very similar to those which were being made to his Honour Judge Harold Wilson. The headnote at [1993] 3 WLR 493 reads as follows:
'In September 1992, the local authority instituted care proceedings under the Children Act 1989 relating to two half-brothers, then aged 6 and 2, who were then in the care of the mother. Interim care orders
were made and the substantive hearing date fixed. On the summons for directions, orders were made, inter alia, that the mother file and serve medical reports from three named doctors which related to her and which had been commissioned on her behalf on the advice of her legal advisers. A further order was made that the mother file and serve hospital reports relating to the boys. The orders were made by consent. Ten days before the substantive hearing the mother applied to amend the order requiring her to file and serve the medical reports relating to her by the addition of the words, "if the mother intends to rely on them".
On the question whether disclosure could be ordered by the court:
Held, granting the application, that since proceedings under the Children Act 1989 were adversarial in the sense that each party was entitled to be heard, be represented by an advocate and challenge opposing evidence in cross-examination they were proceedings in which legal professional privilege could not be overridden; that in the absence of waiver by the party concerned, the court had no power to order disclosure of legally professionally privileged documents and that therefore the mother was not obliged to disclose medical reports obtained by her solicitor unless she wished to do so.'
There has been no appeal directly from that decision. The decision was cited to Judge Harold Wilson. In the course of his judgment, Douglas Brown J referred to cases dealing with legal privilege and, at pp 653D and 495G respectively, he said:
'In these circumstances, says Mr Rippon, the law is clear. Medical reports made on behalf of a party to litigation on the advice of legal advisers are privileged documents and, in the absence of a waiver, no order for disclosure can be made. He relied on Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162. He drew my attention in particular to the judgment of Roskill LJ, who, in the course of his judgment, made reference to the passage from the judgment of Lord Denning MR in Re Saxton deceased [1962] 1 WLR 968 where the Master of the Rolls said this at p 972:
"The court would not order the report of either expert to be shown to the other side before the trial. That could only be done by agreement. This is the familiar practice in all cases where experts are called, such as patent cases, Factory Act cases (where engineers are employed) and personal injury cases (where doctors are employed). The reports of experts are often exchanged by agreement, but no compulsion on either side is exercised: see Worral v Reich [1955] 1 QB 296. The reason is because, to our way of thinking, the expert should be allowed to give his report fully and frankly to the party who employs him with all its strength and weakness, and not be made to offer it beforehand as a hostage to the opponent, lest he take unfair advantage of it. In short, it is one of our notions of a fair trial that, except by agreement, you are not entitled to see the proofs of the other side's witnesses."'
The judge, Douglas Brown J, then continued his judgment as follows:
'Mr Rippon referred to other passages in the judgment, which I do not need to refer to, which carry the matter really no further. He properly drew my attention to the case of Re A (Minors: Disclosure of Material) [1991] 2 FLR 473, a decision of Johnson J expressed to be obiter where the facts are rather similar to the present case. The judge in that case drew a distinction between ordinary litigation where the rule illustrated in Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162 applied and wardship cases. Because the jurisdiction in wardship was parental, administrative and non-adversarial in character, there was, at any rate in legal theory, an unrestricted jurisdiction to do whatever was necessary for the welfare of the ward. That included the power in appropriate cases to override legal professional privilege. The power should only be exercised rarely and only when the court is satisfied, after conducting a balancing exercise, that it was necessary for it to be exercised in order to achieve the best interests of the child's welfare.
Mr Rippon made three submissions about that case. First of all, it was a decision obiter; secondly, that I am not sitting in wardship and the administrative and paternal aspects of wardship have not been transferred to the Children Act 1989 jurisdiction. The decision of Johnson J, if correct, has no application when the judge is concerned with a Children Act application. Thirdly, if there was jurisdiction to override legal professional privilege this was not a case where it should be done.'
In his conclusion the judge said at pp 655D and 497E respectively:
'In my judgment this mother, in the absence of waiver, is not bound to disclose medical reports obtained by her solicitor unless she wishes to do so, and I will amend the order to add the words suggested by Mr Rippon. It may be (and I express no concluded view as to the correctness of Johnson J's decision in Re A (Minors: Disclosure of Material) [1991] 2 FLR 473) that in wardship proceedings there is power to order disclosure of material governed by legal professional privilege. Children Act 1989 proceedings are not wardship proceedings. They are not paternal, they are not administrative and they are not in reality non-adversarial, although they should be conducted in a non-adversarial spirit. Johnson J's justification for the view he took, based in part on Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36, was that he would have been exercising the wide powers of the wardship judge. These powers are not available to me giving interlocutory directions on an s 31 care order application.
Miss Bradwell argued that the welfare paramountcy principle was common to both wardship and the Children Act and so it is, but the justification for taking the highly unusual step of overriding legal professional privilege was the particular nature of the wardship jurisdiction which has not been inherited by the Children Act jurisdiction. Children Act proceedings are adversarial in the sense that each party is entitled to be heard and to challenge opposing evidence by cross-examination and entitled to representation by an advocate. In this context I refer to the judgment of Roskill LJ in Causton v Mann Egerton (above) at p 170D:
"As Mr Wright [counsel for the defendants] said, so long as we have an adversary system, a party is entitled not to produce documents which are properly protected by privilege if it is not to his advantage to produce them, and even though their production might assist his adversary if his adversary or his solicitor were aware of their contents and might lead the court to a different conclusion from that to which the court would come in ignorance of their existence. Some may regret this, but the law has always allowed it and it is not for us to change the law in this respect."'
Douglas Brown J then continued:
'I respectfully agree and if it be the case that the court ought to have the power to direct disclosure of legal professionally privileged documents in children's cases then it will have to be given that power by legislation.'
In the result, he ordered that the application to amend the order would be granted. His judgment was delivered on 12 March 1993. It was reported on 13 August 1993. It had, I think, previously been reported in the All England Reports, because it was available when Thorpe J considered the case of Essex County Council v R on Friday, 23 July 1993. Thorpe J, in the course of a care hearing, was faced with a similar problem. It had not occurred in the same way at a directions hearing, but nevertheless it was the same matter in principle. The judge said [ [1993] 2 FLR 826 at pp 827-8]:
'In relation to this issue, what was the professional responsibility of the mother's legal team? Obviously the report was the subject of legal professional privilege. Was it discoverable, or were the mother's advisers in any event entitled to conduct the case as though the report had never been made?
The professional responsibility in these circumstances is not clear on the authorities as they now stand. On one view the decision of Johnson J in Re A (Minors: Disclosure of Material) [1991] 2 FLR 473 establishes that the court in wardship had the power to order a party to disclose a report to which legal professional privilege attaches if containing material relevant to the determination of the case and even if that material is adverse to the party's cause.
A subsequent judgment of Douglas Brown J in Barking and Dagenham London Borough Council v O and Another [1993] 2 FLR 651, declines to extend that principle, seemingly established in wardship, into Children Act applications. The decision makes it plain that legal professional privilege is not to be displaced in Children Act cases other than by legislative process. If there was such a power in wardship, it rested upon the parens patriae jurisdiction and is not to be extended into Children Act cases.
I find myself in disagreement with that decision. It is relevant to observe that the point came to Douglas Brown J as the applications judge, he being asked to vary as a matter of urgency a direction that had been made by another judge of the Division for the filing of reports by a
deadline which was expiring that day. The argument presented to Douglas Brown J rested partly upon the basis that the decision of Johnson J in Re A was obiter. Technically it might have been said to be an obiter decision in the sense that the report was ultimately proffered voluntarily by leading counsel for the mother before the court order compelled that. But Johnson J was asked to rule on the point and he heard full argument from leading counsel before giving a considered judgment.
It is quite plain to me that the judge in wardship held a responsibility to investigate any material relevant to the determination of the welfare issue, whether put before him by the parties in adversarial range or not. There is clear authority in the House of Lords in Re E (SA) (A Minor) [1984] 1 WLR 156. I do not accept that the investigative powers and responsibilities of the Family Division judge have been curtailed now that his principal jurisdiction is under the Children Act 1989. It follows in my judgment that all that is said by Johnson J in Re A is of equal application in Children Act cases decided by a judge of the Family Division.
Legal professional privilege is the creature of case-law and where limitations by exception have seemed necessary, those limitations have equally been developed by case-law. In my judgment where the court considers the welfare of a child, the power that it holds, allied to its responsibility, enables it to override a legal professional privilege which is set up to preserve or enhance the adversarial position of one of the parties.'
Those two decisions were drawn to the attention of his Honour Judge Harold Wilson. He was faced with the difficult task of having to make a decision in the knowledge that there were conflicting rulings of two High Court judges of the Family Division. He heard argument, of course, from counsel who appeared then and who appear before this court in this appeal for the various parties. Having referred to those two decisions, he said at p 4E of the transcript of his judgment:
'I prefer to follow the guidance contained in Thorpe J's decision because it seems to me to accord far more closely to the spirit which lies within the Children Act. It is an Act which puts the child first without any qualification of any sort, and is the first piece of legislation so to do. In those circumstances it seems to me that the court is concerned from beginning to end and overwhelmingly with doing everything possible to come to the right conclusion for the future of the child with which the court is concerned.
The game of adversarial litigation has no point when one is trying to deal with fragile and vulnerable people like small children. Every other consideration must come second to the need to reach the right conclusion if possible.
Accordingly, I decline to amend the wording of clause 4 and insofar as I grant leave as sought by Mr Baker with regard to other experts that leave is conditional upon the reports which are furnished being filed with the court and served upon the other parties, including, of course, the guardian.'
The judge then proceeded to grant the leave sought by both the mother and the father of T for leave to disclose documents to experts, but he ordered that any consequential reports should be filed by a specific date and served on the other parties. It is against that decision of Judge Harold Wilson that the mother and the father of T now appeal to this court. The appeal is very properly brought to this court on this point, because there is at present the embarrassment of two conflicting decisions of the High Court.
We are indebted to the careful argument which Mr Baker has developed in advancing the appellant's case. He submits that this court should prefer Douglas Brown J's reasoning and decision to that of Thorpe J. Without any disrespect to Mr Baker, it is not necessary to recite in this judgment each of the points which are clearly set out in his careful skeleton argument and which he developed orally in his submissions to us, because in point of fact his submissions follow very closely the points made in the judgment of Douglas Brown J, to which I have already referred. In short, Mr Baker, supported by Miss Middleton (counsel for the second respondent), submits that legal professional privilege is not to be set aside by a judge hearing a Children Act case where a care order is sought. Although the privilege derives from case-law, it is none the less entrenched in our law and can only be set aside or overridden in extreme circumstances. Mr Baker did, of course, invite the court's attention to the judgment of Johnson J in Re A (Minors: Disclosure of Material) [1991] 2 FLR 473. The headnote of that report reads:
'After a hearing in wardship proceedings of the local authority's application for two children to be placed with long-term foster-parents with a view to adoption, the judge was asked to give a ruling on the question whether the court would have had the power, if it was thought necessary, to order the disclosure of a report by a paediatric pathologist, made at the request of the mother's solicitors but not submitted on her behalf nor placed in the agreed bundle of medical evidence.
Held - in ordinary litigation, the court normally had no power to override the privilege of material produced for a party by expert witnesses. The situation was different, however, in the wardship court, where jurisdiction was parental, administrative and non-adversarial in character and where there was, at any rate in legal theory, an unrestricted jurisdiction to do whatever was necessary for the welfare of the ward. The court sitting in wardship did have the power in appropriate cases, to override the legal professional privilege which attached to a report such as that obtained by the mother's solicitors from the paediatric pathologist, though that power should be exercised rarely, giving due consideration to the need for parties not to feel inhibited from obtaining such reports and not to be left with a feeling of injustice, and only if the interests of the child so required.'
The judge reviewed a number of cases including Causton v Mann Egerton (Johnsons) Ltd (above) and Scott v Scott [1913] AC 417 and Re Saxton (deceased) [1962] 1 WLR 968 and Official Solicitor to the Supreme Court v K [1965] AC 201, at p 240 where Lord Devlin made the following observation:
'The jurisdiction regarding wards of court which is now exercised by the Chancery Division is an ancient jurisdiction deriving from the prerogative of the Crown as parens patriae. It is not based on the rights of parents, and its primary concern is not to ensure their rights but to ensure the welfare of the children.'
The judge, having cited that passage, continued at p 476D:
'So, as is well known, prior to the power being incorporated in s 33 of the Family Law Act 1986, the court sitting in wardship had power to order a solicitor to disclose the whereabouts of the ward, notwithstanding that his means of knowledge derived from his position as solicitor for a party.
Of course, the jurisdiction in wardship is to be exercised on a judicial basis. In Re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47, Roskill LJ said at p 60:
"For my part I would agree with Mr Anns that no limits to that jurisdiction have yet been drawn and it is not necessary to consider here what, if any, limits there are to that jurisdiction."'
At the conclusion of his judgment the judge said at p 477B:
'I hold that the court sitting in wardship does have power, in appropriate cases, to override the legal professional privilege which attaches to a report such as that obtained by the mother's solicitors from the paediatric pathologist. That power should, I consider, be exercised only rarely, and only when the court is satisfied that it is necessary for it to be exercised in order to achieve the best interest of the child involved.'
That decision formed the basis of Thorpe J's decision in the case of Essex County Council v R, to which I have referred. The argument addressed to this court by the two appellants is that because the doctrine of legal professional privilege appertaining to experts' reports, having been established by case-law, is so well entrenched in the common law of this country it should not be overridden in cases involving children brought under the provisions of the Children Act 1989.
Mr Baker emphasises that the Children Act is a statute. It contains no specific provision for the overriding of legal professional privilege in any circumstances. In the absence of any specific provision either by Act of Parliament or statutory instrument the court has no jurisdiction to override that privilege.
On behalf of the county council and on behalf of the guardian and indeed on behalf of the third respondent, the submission made is that Thorpe J's exposition of the position is to be preferred, and that the county court judge was correct in following his judgment rather than that of Douglas Brown J. The submission made by the guardian in a helpful skeleton argument and expanded by oral submissions is that the jurisdiction in care cases under the Children Act is not in essence different in spirit from that exercised by the court under its wardship jurisdiction. Wardship is not in fact abolished by the Children Act, although the ability of local authorities to seek relief in wardship is restricted. Further, s 1 of the Children Act provides:
'When a court determines any question with respect to the upbringing of a child . . . the child's welfare shall be the court's paramount consideration.'
That provision governs the entire application of the Act to children's cases. It is a provision which overrides every other consideration in the application of the Act to this area of the law. The child's welfare is paramount and the duty of the court when considering a care case is to arrive at a conclusion which is in the overriding interests of the welfare of the child.
Attention has been drawn to a number of cases in which comment has been made by judges of the Court of Appeal and indeed by myself [in the Family Division] in a case, Re G, which went to the Court of Appeal [R v Birmingham Juvenile Court ex parte G [1989] 2 FLR 454] and was cited by the guardian ad litem. There, judicial observations were to the effect that children cases, including those considered under the earlier legislation, were not adversarial. Miss Hall, on behalf of the guardian, drew attention to the words of Lord Widgery CJ in the Humberside case [Humberside County Council v R [1977] 1 WLR 1251] in which he deprecated the idea that children's welfare should be dealt with on an adversarial basis. I find that in the case of B v Derbyshire County Council [1992] 1 FLR 538, I said at p 546A:
'On 14 October 1991 the Children Act 1989 is going to become effective and, when that takes place, I very much hope that the adversarial approach to care proceedings will disappear to a very large extent. What has happened in this case is symptomatic of the adversarial approach, where technical points are taken in order to secure a particular result. What will become more apparent from 14 October 1991 is that what the court is concerned with is the whole welfare of the child and that its task is to investigate, in an inquisitorial manner if necessary, the interests of the child.'
I then dealt with the particulars of that case. I reiterate what I then said. The proceedings under the Children Act are not adversarial, although an adversarial approach is frequently adopted by various of the parties. However, so far as the court is concerned, its duty is to investigate and to seek to achieve a result which is in the interests of the welfare of the child. In my judgment, Douglas Brown J erred in following too closely the procedures of civil litigation which had given rise to the application of the doctrine of professional privilege in cases between party and party. Children's cases are not similar cases. They fall into a special category where the court is bound to undertake all necessary steps to arrive at an appropriate result in the paramount interests of the welfare of the child. If a party, having obtained the leave of the court, were to be able to conceal, or withhold from the court, matters which were of importance and were relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted as the Children Act requires. In my judgment, the court must have power to override legal professional privilege in these circumstances.
Judge Harold Wilson was perfectly correct in the course which he took. In my judgment, he made a correct decision. I agree with Thorpe J that the investigate powers and responsibilities of Family Division judges have not been curtailed now that the principal jurisdiction of the court in children's cases arises under the Children Act 1989. It may not have escaped notice that on the coming into force of the Children Act in 1991, orders which had been made in wardship, committing children to the care of local authorities under the provisions of s 7(2) of the Family Law Reform Act 1969, were automatically converted into care orders under s 31 of the Children Act. Children's cases are to be regarded as being in a special category. In these circumstances, the court has power to override legal professional privilege in relation to experts' reports when it gives leave to parties to obtain them. Relevant information should be made available to the court in order that it can arrive at a conclusion which is in the overriding interests of the welfare of the child.
For these reasons, I would dismiss both these appeals. They have, in fact, followed a similar course and they should, in my judgment, be dismissed.
STEYN LJ: I agree with the order proposed by my Lord, the President, and I agree with the reasons given in his judgment. In care proceedings under the Children Act 1989 the appellants claim the right to be able to suppress experts' reports, if those reports turn out to be unfavourable, in the same way as a party in ordinary civil litigation is entitled to suppress unfavourable proofs of evidence or experts' reports. The judge's order denies the appellants the benefit of legal professional privilege. In my judgment the principal question is whether this privilege does attach to experts' reports obtained in care proceedings under the Children Act 1989. This is an important question of law which has considerable implications for the way in which litigation under the 1989 Act is conducted. It is also a difficult question, as is evident from the fact that in careful judgments two experienced judges of the Family Division have come to opposite conclusions, as my Lord, the President, has already explained.
In the present case the judge came to the conclusion that a note in The Family Court Practice (1993), p 1124, correctly summarises the approach to be adopted. The editors conclude that legal professional privilege does attach to experts' reports and that 'there is no obligation to volunteer disclosure and that what would be material evidence can, in effect, be kept from the court'. But they consider that the problem can in most cases be solved. They state:
'The court can avoid this rather undesirable state of affairs, where an examination or assessment of the child is to take place and leave is required, by granting leave only on condition that the expert's report (or if there is no report, the substance of his opinion) be disclosed to the court and, if appropriate, to the other parties, and it is suggested that this should be the routine approach. It will also be possible to achieve a
similar result in other cases by attaching the same condition when granting leave to disclose the documents in the case to an expert.'
The judge thought that Thorpe J shared this view. It does not seem to me that Thorpe J approached the matter in this way. But, in any event, the suggested approach does not seem to be a satisfactory way of dealing with the matter. The power to attach conditions to the grant of the required leave does not derive from the 1989 Act. It is an implied power in the Family Proceedings Rules. Given that the power to grant the required leave does not expressly contain a power to attach conditions, I readily accept that by necessary implication the power to grant leave comprehends the right to attach conditions to the grant of leave. But, if it be the case that legal professional privilege attaches to experts' reports in care proceedings, it seems to me to follow that it would be wrong to exercise the power to attach conditions in order to destroy the privilege. If the privilege applies, it must be respected. Moreover, it seems to me axiomatic that a strong privilege, such as legal professional privilege, cannot be taken away pursuant to subordinate legislation: see Comfort Hotels v Wembley Stadium Ltd [1988] 1 WLR 872; R v Secretary of State for the Home Department ex parte Leech [1993] 3 WLR 1125, CA. But that is exactly what the judge purported to do. He relied on the implied power to attach conditions to the grant of leave contained in the subordinate legislation. Much as I sympathise with the result which the judge sought to achieve, I cannot support that part of his reasoning. In my view, the answer to the problem must be sought in the primary legislation, viz the 1989 Act.
That brings me to the question whether the privilege does apply in care proceedings under the 1989 Act. The rationale of the privilege is that without it a party's access to justice will be undermined. It is therefore an auxiliary principle buttressing the constitutional right of access to justice. On the other hand, the privilege contemplates that relevant evidence will sometimes be withheld from the court. It must therefore be kept in justifiable bounds. Leaving aside statutory exceptions and waiver, Matthew and Malek, in Discovery (1992) at para 8.51, point out that there are at least eight established exceptions to legal professional privilege. An instructive exception is the rule that the privilege will not justify withholding documents which, if produced, would perhaps enable a man to establish his innocence or to resist an allegation made by the Crown in a criminal trial: see R v Barton [1973] 1 WLR 115, at p 118. In such a case the rationale of legal professional privilege must yield to the higher value society attaches to the liberty of the subject. It demonstrates the point that there may be countervailing policy considerations which militate against the privilege.
But there are other exceptions and even closer analogies. In Re A (Minors: Disclosure of Material) [1991] 2 FLR 473 Johnson J held that in wardship proceedings the court has the power to override legal professional privilege. It is true that Johnson J expressed himself in cautious terms in saying that the power should only be exercised in rare circumstances. The reason for the judge's caution may be the fact that discovery is practically unknown in wardship proceedings. In any event, the reason for the rule in wardship proceedings is not a technical one but the broad consideration that the court has a plenary jurisdiction to do what is necessary for the welfare of the child. Making due allowance for the jurisdictional differences between wardship proceedings and care proceedings under the 1989 Act, one is immediately struck by the fact that a common feature in both adjudicative processes is the paramountcy of the welfare of the child. Rhetorically, I would ask: Why should there be a difference on this point between the two jurisdictions? There is another close analogy. Even before the 1989 Act, a local authority did not have the benefit of legal professional privilege in respect of experts' reports in care proceedings. It was obliged to disclose to all parties all relevant documents and experts' reports which were within its possession: see R v Hampshire County Council ex parte K [1990] 2 QB 71, [1990] 1 FLR 330, per Watkins LJ, at pp 77G and 336 respectively. This is a fortiori the position under the 1989 Act: see the Family Proceedings Rules 1991, r 4.11(9). The only qualification to these propositions is the necessarily rare case when public interest immunity will justify withholding such reports. It is important to note the reason for this exception to legal professional privilege. The reason is to ensure that the court will make properly informed decisions in the best interests of the child. I accept, of course, that other parties to care proceedings, such as a father or mother of a child, are interested parties in a more direct or immediate sense. On the other hand, in the theory of the law such interested parties must be credited with the objective of seeking to promote the best interests of the child, albeit that their perspectives are coloured by subjective considerations. In my view R v Hampshire County Council ex parte K (above) throws light on the problem before us: it established that the legal professional privilege of the local authority had to yield to the paramount consideration of the welfare of the child.
That brings me directly to the question before us. Is an interested party in care proceedings, who has obtained an unfavourable expert's report, entitled to suppress the report and to maintain through counsel and solicitors a case at variance with it? If the answer is yes, the spectre cannot be avoided that judges will sometimes decide cases affecting children in ignorance of material facts and in a way detrimental to their best interests. In Barking and Dagenham London Borough Council v O and Another (above) Douglas Brown J squarely confronted this problem. He emphasised the adversarial character of care proceedings. He relied on dicta of Roskill LJ in Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162. Roskill LJ made reference to a judgment of Lord Denning in Re Saxton (deceased) [1962] 1 WLR 968 at p 972, in which Lord Denning, in effect, said that it was one of our notions of a fair trial that a party should not see the proofs of the other side's witnesses, including their experts.
Much has, however, happened in our system of civil justice since 1962. Today there is a comprehensive system for exchange of experts' reports and witnesses' statements. Our system of civil justice has become more open. Judges have to become more interventionist. But it is of particular importance to note that in the Family Division, care proceedings do not have an essentially adversarial character: see R v Birmingham Juvenile Court ex parte G [1990] 2 QB 573 [ [1989] 2 FLR 454], per Purchas LJ at pp 584C and 589C and per Russell LJ at p 597C. In practice, judges dealing with directions hearings in such cases adopt an interventionist style. And at the substantive hearing the judge has substantially greater control over the deployment of evidence and argument than a judge sitting in, for example, the Queen's Bench Division. In any event, it seems to me that the fact that care proceedings under the 1989 Act still have some vestigial adversarial characteristics does not by itself answer the question before us. After all, exceptions to this common law privilege have been established in the context of a largely adversarial system, the reason being that the interest served by the privilege had to yield to an interest to which the law attached a higher value.
The countervailing consideration is the fact that under the Children Act 1989 the child's welfare is the paramount consideration. This objective is spelled out explicitly in s 1(1). The welfare check-list in s 1(3) underpins it. And the Act contains a framework designed to achieve that purpose. The 1989 Act was a watershed. Subject to the threshold criteria set out in s 31 of the Act having been made out, the Act established the paramountcy of the child's welfare as the governing principle in care proceedings. Like Thorpe J in Essex County Council v R [1993] 2 FLR 826 I take the view that this legislative objective would be defeated if a party in care proceedings is entitled to suppress an unfavourable expert's report. I accept that if interested parties do not have the benefit of legal professional privilege in experts' reports they may occasionally be less inclined to seek expert advice. Some might say that fewer experts would be a blessing in this corner of the law. However, giving full weight to this potentially inhibiting factor, it seems to me that it is outweighed by the paramountcy principle enunciated in s 1(1). The general legal professional privilege attaching to an expert's report must therefore yield to the greater value to be attached to the particular legislative purpose of making the child's welfare the sole criterion in care proceedings.
I would, therefore, rule that in proceedings under the 1989 Act a judge is empowered to make the orders which are challenged on this appeal. But I restrict my conclusion to the point before us. It does not mean that legal professional privilege has no role to play. For example, the promotion of the welfare of the child does not require that communications between a client and a lawyer should be disclosed: such advice is not material which could arguably affect the judgment of the court.
For reasons somewhat different from those given by the judge in his helpful judgment, I conclude that the judge's orders were properly made and I would dismiss both appeals.
KENNEDY LJ: I agree the appeals should be dismissed and with what has fallen from my Lord, the President. I do not share entirely the misgivings of Steyn LJ as to the approach adopted by the judge. Normally in civil litigation conducted on adversarial lines, a medical report obtained by one party is privileged. The party need only disclose it if he or she wishes to call the particular witness. However, if the party desiring to obtain a medical report needs the assistance of another party, or in this instance, of the court, that other party or the court, as it seems to me, may make it a condition of providing the necessary assistance that the report when obtained shall be disclosed. I, for my part, see nothing in the leave provisions of the statute which makes that course objectionable. That approach received some approval from the Court of Appeal in Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162, at p 168 where Lord Denning, although in the minority, said:
'I hope that in future the solicitors for every plaintiff will refuse to allow any defendants to have any medical examination of the plaintiff except on the terms that the defendants will disclose the medical reports following the examination.'
Stamp LJ, in majority, said:
'However desirable it may be that there should be agreement between the parties for the disclosure and exchange of such documents, in the absence of an agreement or waiver of the privilege which would otherwise attach to them, they remain in my judgment privileged.'
That was the route by which he came to his conclusion. But it will be noted that he, like Lord Denning, countenanced the possibility of there being such an agreement or waiver. In effect, that is, as it seems to me, what happened in this case. Judge Paul Clark made his order, as it happened, by consent. The order was in the form that the report, when obtained, should be disclosed. The parties went back before Judge Harold Wilson in order to delete the requirement of disclosure. It seems to me that in the context of the Children Act 1989 it is quite impossible to say that the conclusion at which Judge Harold Wilson arrived was in any way erroneous. He was entitled to maintain, as he did, that if this report was to be produced, which required the leave of the court in order to allow access to documents and video-tape recordings, then the condition should be imposed. Accordingly, for reasons somewhat different to those ventilated so far, I arrive at the conclusion that this appeal must be dismissed.
Order accordingly.
DEBORAH DINAN-HAYWARD
Barrister
