How is confidentiality protected when foster carers seek legal advice?

Confidentiality in a legal consultation is protected mainly by the solicitor’s professional duties, legal professional privilege and data protection law. Information you give your solicitor is normally treated as private, and the solicitor should not disclose the substance of your advice to your fostering agency, local authority, household members or other professionals without a lawful basis or your permission.

Legal professional privilege generally protects confidential communications between you and your solicitor when you are seeking or receiving legal advice. It can cover what you tell the solicitor, the solicitor’s advice and some documents prepared for the purpose of obtaining legal advice. The protection belongs to the client, so a solicitor should explain who they are acting for if more than one person is involved. This matters where partners, prospective foster carers and other family members have different interests.

Confidentiality is not the same as an absolute promise that nothing can ever be disclosed. A solicitor should explain the limits of confidentiality before taking detailed instructions. Disclosure may be permitted or required where:

• you give informed consent for particular information to be shared;
• a court makes an order requiring disclosure;
• the law places a reporting or disclosure obligation on the solicitor; or
• sharing information is necessary to prevent serious harm or respond to a serious safeguarding issue.

The safeguarding exception should not be understood as allowing routine sharing of every concern. The solicitor should consider the circumstances carefully and disclose only information that is necessary and proportionate, where the law permits or requires disclosure. If there is a risk that information may need to be shared, ask the solicitor to explain what could happen and who might receive it.

Data protection rules provide an additional framework for handling your personal information. A solicitor’s firm should have a privacy notice explaining how information is collected, used, stored and retained. This may include identity details, records of advice, correspondence and documents relating to your fostering situation. You can ask how your information will be kept secure, whether electronic communications are encrypted, and how long records are expected to be retained.

Confidentiality can be affected by the way you communicate. A solicitor cannot guarantee privacy if you discuss the advice in a group chat, forward legal correspondence to other people or use a shared email account that others can access. Use a private email address where possible, check who is copied into messages and tell the solicitor if post, calls or electronic messages could be seen by someone else.

If your partner is attending the appointment, tell the solicitor in advance. The solicitor may be able to include them, but should confirm whether they are also a client, merely present with your permission, or receiving information as a support person. Where the interests of two people may differ, one solicitor may not be able to advise both of you. Separate advice may then be appropriate.

Your fostering agency may need information about the progress or outcome of a legal issue, particularly where it affects a placement, an agreement, an assessment or a safeguarding decision. That does not automatically entitle the agency to receive all of your legal advice or every document held by your solicitor. You can ask your solicitor to help distinguish between:

• information that must be shared to deal with a practical or safeguarding matter;
• information you may choose to share to help resolve an issue; and
• confidential legal advice that should remain private.

If you decide to authorise disclosure, give clear instructions about what may be shared, with whom and for what purpose. You can ask for the authorisation to be recorded in writing. Avoid forwarding a complete advice letter when a short, agreed summary would meet the need, because wider disclosure can affect the confidentiality attached to legal communications.

Before the consultation, prepare a short list of the people or organisations involved and explain any concern about privacy. During the meeting, ask:

• Who is the client?
• Which communications and documents are likely to be confidential?
• Are there any circumstances in which information may have to be disclosed?
• What information, if any, will be sent to the fostering agency or local authority?
• How should confidential documents be sent and stored?

If you are unsure whether to share a document with your agency, send it to your solicitor first and ask for advice rather than forwarding it immediately. Keep copies of your instructions and the solicitor’s responses in a private location. A solicitor should also tell you if confidentiality is uncertain, if another person’s interests create a conflict, or if they cannot advise you on a particular issue.

For a concern about how your information has been handled, start by asking the solicitor or firm to explain what was disclosed and the legal basis for doing so. You can use the firm’s complaints procedure if the explanation does not resolve the issue. Where appropriate, independent advice may help you understand whether a disclosure was lawful and whether it affected your position as a foster carer or applicant.