The Gazette 1977

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GAZT I IH JANUARY/FEBRUARY IV77
I
(ci o K
GUARDIANSHIP OF INFANTS ACT 1964
In the first instance the designated Committee decided
to furnish a Case to obtain Counsel's opinion on
questions of privilege arising under the Guardianship of
Infants Act 1964.
This opinion was helpful and Counsel specifically dealt
With the five questions in the Case as follows :-
Q- (1): Does the Guardianship of Infants Act. 1964,
mean that it is incumbent upon a solicitor,
marriage guidance counsellor or clergyman to
divulge adverse information to the Court
regarding a spouse, client or confidant in the
interests of the infant?
A. In
my view a soliicitor is under no such obligation.
The client, himself, however, may be under such an
obligation. Likewise, it would not appear that a
clergyman is under any such obligation. A marriage
guidance counsellor may, however, be obliged to
disclose such information if called upon to give
evidence.
Q* (2): If so, how can the confidential nature of the
communication from the spouse and the
privileged position of the solicitor or confidant be
protected?
A- If my reply to question 1 is correct this question does
not arise.
V. (3):
Should the privilege of the solicitor or confidant
be merely uncompellable, which would mean that
a solicitor or confidant would be at liberty under
the law to break his client's confidcnce in the
interests of the infant?
A. In my view, a solicitor or clergyman who had
Professional privilege would be uncompellable. He
Would also be under professional obligation not to
disclose confidential information without the
permission of his client. A marriage guidance
counsellor, on the other hand, would be a compellable
witness. I do not see, however, that he would except in
foe rarest of cases — be under any obligation to come
Before the Court and disclose to the Court
^formation damaging to his client which he had
received in confidence.
V. (4):
Has .the solicitor or confidant the duty to have a
case re-opened in the light of after-acquired
» information?
In my opinion no. This appears to me to be essentially
work appropriate to a welfare officer.
V. (5):
As the law stands, is a solicitor or confidant
entitled to refuse to testify concerning the
spouse's confidence? If not, does such a person
face the possibility of a sentence of imprisonment
for
contempt of Court?
In my view, a solicitor may —and, indeed, must —
refuse to disclose professional confidences received
'torn his client unless he has his client's permission. A
c'e rgyman would appear to be in a similar position. A
16 niarr^aBe counsellor has no similar privilege. If he is
jj l. -1» . M . « 4 |
called upon to testify, he should make it clear to the Trial
Judge his reluctance to disclose information on the"
grounds that he has received it in confidence. He
should, however, also 'make clear his willingness to
abide by any direction which the judge may give to
him. It would appear to me that there would only be
one circumstance in which a marriage counsellor may
avoid having to disclose confidential information and
that would be in the case of his having engaged in
"without prejudice" negotiations. Even then his
position might be difficult
The Committee's view is that the following categories
of persons are, in view of Counsel's Opinion, not
protected by privilege in the same way as solicitors or
clergymen, namely:-
1. Social workers.
2. Marriage guidance counsellors.
3. Advisers at F.L.A.C. centres, including
attending solicitors.
4. Welfare officers.
The Committee recommends that representations be
made to the Department of Justice for the introduction of
legislation which would afford protection to those persons
enumerated above who appear to be at risk as the law
stands at present where the Guardianship of Infants Act
is concerned.
The four categories which we have mentioned are not
-necessarily exhaustive. On the other hand, the Committee
feels that privilege should be limited to selected categories
of persons. If privilege was to apply to too many
categories, serious abuse could arise.
Dated this 15th day of September 1976
DAVID R. PIGOT
WALTER BEATTY
THE PRESIDENT'S DIARY OF ENGAGEMENTS
27/1/1977 - Attended Annual General Meeting of
Mayo Solicitors' Bar Association at BreafTy House Hotel,
Castlebar accompanied by Gerald Hickey, Chairman
Finance Committee.
28/1/1977 - Presided at Solicitors' Apprentices
Debating Society of Ireland Inaugural Meeting at Four
Courts and spoke to a paper, seconded a resolution
proposed by Senator Mary Robinson.
31/1/1977 - Was received by the Chief Justice in his
Chambers.
3/2/1977 — Paid a courtesy visit to the President of the
High Court.
3/2/1977 - Attended meeting of Wicklow Solicitors'
Bar Association at La Touche Hotel, Greystones.
4/2/1977 — Dined at King's Inns at invitation of the
Honorable Society of King's Inns.
12/2/1977 — Attended Southern Law Association's
Annual Dinner in the Metropole Hotel, Cork.
15/2/1977 - Attended a dinner hosted by An
Taoiseach in honour of the Prime Minister of Portugal at
Iveagh House, Dublin.
16/2/1977 - Attended meeting of West Cork Bar
Association in Skibbereen.