Ethical Discretion: The Complexities for a Lawyer Reporting a Child in Need of Protection

(2022) 100:1 Can Bar Rev (Forthcoming)

25 Pages Posted: 29 Dec 2021

See all articles by Deanne Sowter

Deanne Sowter

Osgoode Hall Law School ; The Winkler Institute for Dispute Resolution

Date Written: December 28, 2021

Abstract

Everyone has an obligation to report when they have reason to believe that a child is in need of protection, including lawyers – except where that information is protected by solicitor-client privilege. If the information is confidential a lawyer is required to report their suspicion, but a lawyer can only report privileged information pursuant to an exception. In this paper, I examine the future harm exception and the debate about its permissiveness. I consider reporting in the context of three lawyer-client relationships, namely, when the client is (i) the perpetrator, (ii) the other parent or guardian who is also a victim of intimate partner violence, and (iii) the child who is at risk. The overriding consideration throughout is safety. In most cases, if the future harm exception is met, the decision to report will be straight-forward; however, I argue that discretion is helpful where there is family violence or where the lawyer’s safety is at risk too.

Keywords: Legal Ethics; Child Protection; Family Law; Family Violence; Legal Profession; Intimate Partner Violence

Suggested Citation

Sowter, Deanne, Ethical Discretion: The Complexities for a Lawyer Reporting a Child in Need of Protection (December 28, 2021). (2022) 100:1 Can Bar Rev (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3995570 or http://dx.doi.org/10.2139/ssrn.3995570

Deanne Sowter (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

The Winkler Institute for Dispute Resolution ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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