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

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