You have the right to remain silent (or do you?)

The decision to give permission to appeal in Re K (children) 2013 might well become an important one, when the full appeal is heard.

I have written about whether the statutory position that a parent can give evidence in care proceedings and that evidence may only be used in a criminal trial for perjury – thus giving a preservation against self-incrimination, has been badly eroded

https://suesspiciousminds.com/2013/02/04/is-there-a-meaningful-right-to-silence-in-care-cases/

and Re K is a very good example of how this can make a massive difference in the case.

http://familylawhub.co.uk/default.aspx?i=ce3473

The father in Re K had been at the wrong end of a fact-finding hearing about what appear to be very grave allegations (there’s reference to a stabbing and a fire) in private law proceedings – it appears that the original allegations and original findings were that mother had stabbed father and set his home on fire, but these findings were fundamentally reversed at a later hearing, finding that father had done these things himself in order to ‘frame mother’

The Court then adjourned for further assessment, having given the judgment in the fact-finding hearing that father had done things that he ought not to have done. Part of that further assessment inevitably covers whether father has reflected on the findings and come to terms with them. At the final hearing, the Judge formed the view that father had not, and that his unwillingness to move forward was indicative of problems in the future. The father’s position was that he was inhibited by the pending criminal proceedings, and knowing that whatever he said could be reported to the police and ‘shape their enquiries’

The father’s statement made reference to his right to avoid self-incrimination and that as a result he was not able to say anything about the fire and the stabbing, on the grounds that to do so would have potentially incriminated him in criminal proceedings. That obviously made it difficult for him to make admissions or be frank about the circumstances in which those serious incidents occurred, his part in them and why he says that they would not occur again.

Initally, McFarlane LJ hearing the permission hearing was sceptical about the self-incrimination point, believing as so many of us have done, that the provisions in the Children Act 1989 are sufficient to allow a parent to speak freely and frankly without fear that their words will be used against them in criminal proceedings.  He made a point of asking father’s counsel whether, if self-incrimination had been removed as a factor, the father’s position was that he would have given clearer answers to the judge and those conducting the assessment, and the answer was “yes”

Although it seems from the permission that McFarlane LJ simply felt that the legal advice that father was following was wrong, and that s98 was a complete protection, he accepted that the father’s statement made it very plain that his position was based on that legal advice about self-incrimination and that there was an argument to be had about whether the trial judge had dealt with this properly or whether the decisions made about father’s contact were based on an incorrect conclusion that father was utterly in denial about the events. Permission was thus granted for the appeal.

It may be that the Court of Appeal either identify that the provision for evidence of inconsistent statements to be used in a criminal trial clashes with s98 and there is a live problem here to be addressed in cases of this kind, or that they conclude that s98 trumps any provision about inconsistent statements and thus what is said by parents in the family court CAN’T be used against them. Either course, frankly, is helpful and preferrable to the current situation where a parent can be criticised for not being frank and forthcoming and has to do so at the potential expense of having what they say used against them in criminal proceedings if it contradicts any previous statement made to the police.