Law Report: Statements to conciliator are usually confidential: Re D(minors) - Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Butler-Sloss and Lord Justice Rose): 11 February 1992

Evidence of statements made by a party to matrimonial proceedings in meetings held, or communications made, for the purpose of conciliation may not be given in proceedings under the Children Act 1989 save in the very unusual case where a statement is made clearly indicating that the maker has in the past or is likely in the future to cause serious harm to the well-being of a child.

The Court of Appeal decided that a statement prepared by a conciliator was, in the circumstances of the case, not admissible in residence order proceedings under the Children Act 1989.

Following marriage difficulties, the mother and father of two children consulted a clinical psychologist on three occasions for the purpose of conciliation. In proceedings for residence orders under the Children Act 1989 the mother filed a statement by the conciliator, but the judge ruled the statement should be excluded. The mother appealed.

James Holman QC and Katherine Davidson (Collyer Bristow); Nicholas Francis (Rubinstein Callingham Polden & Gale) for the father.

SIR THOMAS BINGHAM MR, giving the judgment of the court, said that the ordinary rule was that evidence of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of reconciliation, mediation or conciliation might not be given. But the parties did not agree whether the rule was absolute or subject to exceptions.

To be effective any attempt at conciliation must be off the record. But it did not follow that that was a rule which permitted of no exceptions at all, even where the safety of a child was at stake.

A substantial line of authority established that where a third party received information in confidence with a view to conciliation, the courts would not compel him to disclose what was said without the parties' agreement. This new category of privilege was based on the public interest in the stability of marriage. There was no reason why rules which had developed in relation to 'without prejudice' privilege should necessarily apply.

The court did not accept that evidence could be given of statements made by one party at a meeting held for conciliation because in the judgment of the other party or conciliator, that party had shown no genuine willingness to compromise. Wherever an attempt to conciliate had failed, both parties were likely to attribute the failure to the intransigence of the other. To admit such an exception would reduce the privilege to a misleading shadow.

It did not follow that evidence could be given of threats made by parties in the course of conciliation. Where deep human emotions were engaged, as they often were in disputes concerning children, such threats were commonplace. To override the privilege in such an event would be to emasculate the privilege and so undermine the whole process of conciliation.

To permit evidence to be given of a party's statements of fact inconsistent with his or her open position would have the same result: unless parties could speak freely and uninhibitedly, without worries about weakening their position in contested litigation if that became necessary, the conciliation would be doomed to fail.

The practice of conciliation had grown and evolved in various ways over the last 10 years, in court and out of court, voluntary and directed, and extended over many parts of the country. Conciliation of parental or matrimonial disputes did not form part of the legal process but as a matter of practice was becoming an important and valuable tool in the procedures of many family courts. That underlined the great importance of the preservation of a cloak over all attempts at settlement of disputes over children.

Non-disclosure of the contents of conciliation meetings or correspondence was a thread discernible throughout all in-court and out-of-court conciliation arrangements and proposals.

It was undesirable that the law should drift very far away from the best professional practice. The practice followed the law in recognising the general inviolability of the privilege protecting statements made in the course of conciliation. But it also recognised the special regard which the law had for the interests of children.

The law was that evidence might not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation save in the every unusual case where a statement was made clearly indicating that the maker had in the past caused, or was likely in the future to cause, serious harm to the well-being of a child.

The court emphasised:

(1) Even in the rare case which fell within the narrow exception defined, the trial judge would still have to exercise a discretion whether or not to admit the evidence. He would admit it only if, in his judgment, the public interest in protecting the interests of the child outweighed the public interest in preserving the confidentiality of attempted conciliation.

(2) This judgment was concerned only with the privilege, that is, with the party's right to prevent statements or documents being adduced in evidence in court. It had nothing to do with duties of confidence and did not seek to define the circumstances in which a duty of confidence might be superseded by other public interest considerations.

(3) The court had deliberately stated the law in terms appropriate to cover this case and no other. If and when cases arose not covered by this ruling, they would have to be decided in the light of their own special circumstances.