Child Care Solicitors

A sensitive issue - By Barinder Atwal

A common issue that childcare lawyers are likely to face is where clients have overlapping matters or matters where the outcome of one case will invariably have an impact on the other. The most common example which comes to mind is where a client has ongoing immigration proceedings alongside their childcare proceedings.

More often than not, the client will have made an application for indefinite leave to remain on Article 8 grounds Right to Family Life under the European Convention on Human Rights in such situations. Therefore the outcome and progress of their childcare proceedings will have an impact on their immigration proceedings. If they cannot secure a residence or contact order in respect of their child, the likelihood increases that their immigration application will not be successful

Despite the obvious importance that disclosure of court documents from the childcare proceedings could have on the client’s immigration proceedings and the potential positive implications which could result in this respect, it still presents a situation where leave or permission of the Court is necessary before any of the documents can be disclosed to the immigration solicitor to strengthen the client’s immigration case. This applies even if the client is represented by the same firm.

It is also no different if the linked proceedings are criminal proceedings, housing proceedings or even linked Family Proceedings. The requirement still remains the same.

The prime reason for this is the doctrine of confidentiality. It goes without saying that Court Documents in Childcare proceedings are privileged documents and therefore the documents can only be disclosed to a select group of individuals. In respect of Children Act 1989 proceedings and confidentiality of the documents therein, this was regulated by rule 4.23 of the Family Proceedings Rules 1991. Rule 4.23 set out that where disclosure to any other parties other than those exempted under rule 4.23 was concerned; leave of the judge or district judge was a necessity, giving permission for the documents to be disclosed in any other proceedings.

However it is by no means certain that the judge will always grant leave for the documentation to be disclosed. In all cases, strong and cogent reasons as to why disclosure is justified will be required. In practice if it is anticipated that there is to be regular liaising between a client’s childcare and immigration, criminal or housing solicitor and it is plausible that information from the childcare proceedings will be needed by that solicitor, this should be agreed with the solicitor for the other party at the initial directions appointment in respect of the client’s childcare matter.

A technical point to note is that there is nothing preventing a client from being able to provide any documentation relating to the childcare proceedings to say, their criminal or immigration lawyer. Theoretically, the childcare solicitors are able to provide general information in respect of the client’s childcare matter as to where the client’s case is at without actually providing any Court Documentation to corroborate this. However this is not free reign for the solicitor to be able to use the documentation or information in their client’s application for bail, appeal against a refused application for indefinite leave to remain or housing application. The documents and information cannot be used in the other proceedings without leave of the family court.

Disclosing the documentation without obtaining leave of the Court could have serious ramifications for the client and the lawyer who discloses without leave as this can easily be construed as contempt of court and a flagrant defiance of the court process. Therefore quite obviously utmost care and vigilance is a must when faced with these issues.

For further guidance on the rules governing disclosure of Court Documents in childcare proceedings, please see rule 4.23 of the Family Proceedings Rules 1991. This sets out the ambit of confidentiality of Court Documents and to whom they can be disclosed without leave of the Court being required.

Furthermore Part XI of the Family Proceedings (Amendment) (No 2) Rules 2009 in particular parts 11.2 and 11.5 provide further clarification pertaining to the disclosure of childcare documents in other proceedings. This statutory instrument also re-iterates to whom documents can be disclosed without leave of the Court being required.