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Family Law

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21 SEP 2011

Sealing one's own fate: disclosure of documents in care proceedings - on the trail to the abrogation of a fair trial? [2005] CFLQ 13

Susan Edwards

Legal Academic and Barrister

The rich evidential jewel of 'frankness' in civil courts in child protection proceedings is currently under siege. Its object, to discover causation rather than attribute blame, is being thwarted by self-incriminating statements made in care proceedings being disclosed to the police. Following the rulings authorising disclosure in Re L (Police Investigation: Privilege) and Re EC (Disclosure of Material), the preservation of the principle of encouraging frankness through promising confidentiality is being compromised, with the result that parents/carers are now less likely than ever to assist those involved in child protection in the discovery of causation. Legal practitioners are obliged to advise their clients that what they say in confidence to third parties and in oral evidence in care proceedings can no longer be assured confidentiality. When the police make applications for disclosure of confidential incriminating documents and/or transcripts, the civil court, in making child welfare paramount, routinely grants the application, leaving it to the criminal courts to 'shut the stable door' and develop a jurisprudence with regard to the obligation to ensure a fair trial in their exercise of discretion regarding exclusionary evidence. It is the concern of this author that where the prosecution have the advantage of access to, and use of, admissions made in other proceedings, the equality of arms principle is stacked in the prosecutor's favour at the pre-trial and trial stages.

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