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Subpoena survival guide

Confidentiality and child protection law

Child protection proceedings (‘care cases’) are civil proceedings brought by Family and Community Services (FaCS) in the Children’s Court, usually to remove a child from their family where there are serious allegations of abuse or neglect.

The sexual assault communications privilege (SACP) does not usually apply in the care and protection jurisdiction of the Children’s Court. Other privileges may apply in care cases, but there is no certainty about how the law will work in a particular case. The primary focus of the court in a care case is ‘the child’s safety, welfare and well-being’. The Children’s (care) Court does not need to be bound by the rules of evidence.

Objecting to subpoenas in care cases

The Children’s Court has the power to set aside a subpoena, wholly or in part. The person served with the subpoena must apply to have the subpoena set aside and also give notice of the objection to the party requesting the subpoena.26

It is always open to the court to exercise its discretion to allow an objection to evidence on proper grounds. Refer to the previous sections on how to object to a valid subpoena, including arguing the public policy reasons behind the sexual assault communications privilege if relevant.

For example, the confidential professional relationship privilege could apply, and the Children’s Court magistrate could decide that even though the evidence was important for the ‘safety, welfare and well-being’ of a child, the evidence could be provided from another less intrusive source. In this way, the legal test for the Magistrate to decide that the harm of disclosure does outweigh the desirability of the evidence being given could be met. You must raise this possibility by indicating your objection to producing the documents or giving the evidence in Court, so that the Magistrate knows to consider this.

TIP / If you are a doctor, social worker, counsellor or therapist (anyone who provides confidential professional services to clients) you can ask the Children’s Court magistrate to protect your documents or evidence in a care case. NSW law gives the magistrate a discretion to maintain confidentiality if the harm to the patient or client of disclosure outweighs the need for the evidence being given.

There would be grounds for protecting your records if there are concurrent criminal prosecutions, or where an alleged perpetrator of abuse is involved in the care proceedings:

  • material which would be protected by SACP in criminal proceedings should not necessarily be easily obtainable in concurrent care proceedings;
  • the public policy considerations that underpin SACP may have some weight in care proceedings. The need for victims of sexual assault to receive counselling is a very real consideration in many care proceedings.
  • Alternatively, it could be that a disclosure of sexual assault and related treatment is really not relevant to the care proceedings, but disclosure of it remains sensitive.

It would be a stronger scenario if SACP has been upheld in criminal proceedings. A claim for SACP should be made for the same documents if subpoenaed in a subsequent care case where the same acts are in issue. Whether the claim will succeed will depend on whether the Magistrate decides the Court will not be bound by the rules of evidence (based on the primary focus being ‘the child’s safety, welfare and well-being’ and the extent to which the documents are relevant in the care proceedings).

The Magistrate will always have to be guided by what he or she decides is necessary to protect the safety, welfare and well-being of a child. However, raising confidentiality and the harm that can be done by disclosing confidential communications is possible. If the Magistrate decides he or she needs the evidence, you can ask that only what is essential be used in the case.

TIP / You could attend court with two copies of your files: one version with nothing redacted (blacked out) and one with information that is private and sensitive and irrelevant to the care case redacted so that only information relevant to the care case is readable. You could ask the Magistrate to review your editing (redacting), or suggest that your client’s lawyer review the editing first, then ask the court to give the other party access only to the edited version.

26 s109H Children and Young Persons (Care and Protection) Act, 1998 NSW

Exchange of information: Chapter 16A Care Act

The Children and Young Persons (Care and Protection) Act 1998 (NSW) (the ‘Care Act’) authorises FaCS to request and receive information from a wide range of service providers. Many of these services are also ‘mandatory reporters’: their staff are required to notify FaCS when they reasonably suspect, through their work, that a child is at risk of significant harm.

TIP / If you are making a report to FaCS and revealing information which you believe would be protected by SACP in a criminal case, mark any documents ‘Confidential. This material may be privileged in a criminal trial’ and include a cover letter to notify FaCS that the information is for child protection purposes only, and is not to be produced in a criminal proceeding because SACP still applies.

Story iconCase study: Harry

Harry was charged with child sexual offences. At his trial, his defence lawyer subpoenaed the mother’s (Harry’s girlfriend) counselling records. The subpoena was successfully challenged on the basis that the SACP applied. The court decided that the public interest in maintaining the confidentiality of the records was not outweighed by the need for evidence in the case, which was available from another source. In the care case about whether the child should be removed from the care of the mother the Magistrate was asked to apply s126H Evidence Act which provides that where SACP is upheld in a criminal trial, it attaches to the evidence in a civil proceedings about the same or substantially the same issue. The Magistrate decided that SACP should apply in the care case, because the evidence was not necessary to protect the safety of the child. There was other less intrusive evidence available to the court.

Request for information

Section 245C Children and Young Persons (Care and Protection) Act 1998 (the ‘Care Act’) (in Chapter 16A) allows information to be exchanged between prescribed bodies. If you receive a request for information from FaCS under Chapter 16A of the Care Act you are not required to provide the information for a range of reasons including that it is ‘not in the public interest’ to provide the information. You must provide reasons in writing for refusing the request. You could refer to the public interest considerations underpinning SACP in your response (see Why would a court override a victim's privacy).

The Care Act provides protection from liability for breach of ethics or defamation for organisations who provide the information, however it must be provided in good faith and with reasonable care.

Direction for information

Section 248 of the Care Act (in chapter 17) allows FaCS to direct a prescribed body to provide information relating to the safety, welfare and well-being of a child. It is an offence under the Care Act to ‘hinder, obstruct, delay …’ , so formal directions should be complied with. Seek legal advice if you are unsure about how to respond.