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Enjoy the (right to) silence

 

Another case on the right to silence, and the frustration of the family Court in having parents refuse to give evidence or file a “no comment” document on the basis of legal advice given by their representatives in criminal proceedings.

I have written about this a few times

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

 Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them  AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.

 Over recent years, that principle has been rather eroded, as the family Courts have become more and more amenable to requests by the police for disclosure of care proceedings AND more importantly, changes to the criminal law which allow for inconsistent previous statements to be admissible in evidence.  S 119  of the Criminal Justice Act 2003  (which never really seems to get tackled when the family courts look at this issue)

 That is a backdoor by which admissions made in care proceedings could be evidence in criminal proceedings if they are an inconsistent statement. The s98 protection may prevail, and a criminal judge rule that it overrides the later legislation which permits inconsistent statements to be adduced as evidence, but it may not. When your client might be looking at an eight year prison sentence, that’s not a risk you want to be taking.

 As a lawyer, it is part of your job, if a client says “Is there any risk in my doing this?” to advise them whether there is or not, including whether it is a grey area.  [It is not necessarily a question of telling them NOT to give a statement in care proceedings, but you have to advise them that doing so involves a risk to them.  HOWEVER, note this judgment, which now makes it plain that it is a contempt of court for a lawyer to tell a parent not to make a full and frank account in their evidence in the family Court, even if that lawyer’s job is to defend them in the criminal court]

 That means that if a parent in care proceedings gives an honest account of what went on, as they are encouraged to do and on the basis of the s98 protection, it may come back to haunt them in criminal proceedings and they are unwittingly potentially waiving their right to silence.

 It is little surprise then that where the issues in question relate to serious criminal offences where a significant custodial sentence might await a parent if convicted, that those representing the parent in criminal proceedings are keen for them not to incriminate themselves.

 One of the other problems is that there are relatively few lawyers who are utterly at ease with both the criminal justice system and the family justice system – so criminal lawyers are nervous and wary about anything that goes into the family court, and family lawyers aren’t going to tell their client to go against the advice they’ve been given by their criminal lawyers.

 The family Courts have been less keen on the parent taking that legal advice, rebuffing the argument in various appeals and also last year committing a man to prison for failing to give evidence in a family court on legal advice.

 https://suesspiciousminds.com/2013/09/19/inconsistent-statements-and-eating-more-porridge-than-orinoco-womble/

 

[So actually, the risk is twofold – if you file the statement it is possible that the prosecution get it and use it as an inconsistent statement, and if you don’t you can be sent to prison by the family court.  If you are thinking that it seems unfair that you might get sent to prison for trying to exercise your right to silence because the framers of legislation left a grey area, then I agree with you]

The family Courts have AGAIN had a crack at this thorny issue, which is not going away, and will not go away until either a very senior criminal court or  family Court address once and for all whether s98 genuinely does offer protection against prosecution for anything other than perjury.

 Part of the problem here is that we have two statutes in conflict with one another – it is all very well for the family courts to think that s98 Children Act 1989 beats s119 Criminal Justice Act 2003, but it ain’t necessarily so.

 

A Local Authority v DG and Others 2014

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/63.html

 Exactly this issue arose – father in care proceedings was directed to file a response to threshold, his legal advice was not to waive his right to silence and that if he was to file anything it should be very very anodyne.

 The Judge was unhappy about the whole debacle, and was  critical of the advice given to the father  although understood why it had been given.

 

The Court was asked to provide some guidance, which it duly did. It does not resolve the ultimate issue of whether it is safe to make admissions in care proceedings or not, but it does clarify WHEN that argument should be heard.  (Clue, if you guessed “When it is too late”, you would be right)

 

40.   Guidance

  1. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
  1. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

a. when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

b. the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

d. it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

e. It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court’s determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.

 

 

Well, that’s helpful in a way, because the Court makes it plain that the parent HAS to file a statement, HAS to comply with the orders of the family Court, HAS to do so on time (even where this means that they are filing a statement that might later be contradicted by their defence statement)  and that the TIME to argue about whether or not the statement might prejudice their right to silence is when the police ASK for it and not before.

 

At least there is a clear process and procedure now. But it still puts the parent and their legal team out on a limb – this is “Tell us everything now, and we’ll decide later whether it will be shared with the police”

 

This isn’t an easy situation, and I have sympathy for all involved, including the Courts. For me, it is a real shame that when this issue got up to the Court of Appeal, the Court of Appeal didn’t just grasp it and make it plain that s98 stands, exactly as written, and that nothing a parent says in evidence in a family Court can be used against them in a criminal court, other than in a prosecution for perjury.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

11 responses

  1. Ashamed to be British

    “Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.”

    Speaking of loopholes previously … surely the loophole here would be, that the burden of proof is on the accuser, if you have made no comment, there is no proof of the accused saying something that could incriminate them?

    Right or wrong? (still learning loads)

    • Hi Sandy – the anomaly is that there is no right to silence in family law, whereas there is in criminal law. And then the problem is that stuff people say in family law under the belief that s98 is a total immunity against prosecution for anything other than perjury is leaking into the criminal proceedings. If a parent makes a confession in care proceedings, and the police ask for it – even if they can’t make use of it in crime (it needs an inconsistent statement to be inadmissable) it surely informs their prosecution decision. If you owned up in care proceedings (as you are encouraged to do) then the police know they have the right man, and aren’t likely to drop the case.

      What vexes me in these family cases is that the article 6 rights in the criminal court (there’s a right to silence in statute for crime) never seem to get addressed.

      There’s a bigger debate, of course, as to whether a parent who wishes to remain silent in care proceedings ought to be allowed to do so – but at present, not only can adverse inferences to be drawn (the opposite of crime) but as you can see, you can get sent to prison for exercising that right to silence.

      I try to defend the family justice system, but I have to call it out on stuff that just doesn’t look fair at all.

      • Ashamed to be British

        What a truly bizarre law! Any person would assume the right to silence is an absolute right, no matter what the situation

        Mind you, I suppose what we do have, is that a court can jail you for the rest of your natural life, but they still can’t make you speak, so the right to silence is still there, whether you are punished for it or not is another story

  2. the worst with care prior to criminal proceedings is that the police can see but the judge/ jury cant see the judgement of the family court judge…hence LA love it as they can guide the Police… and the Police/ CPS love it as they can use the information in it to guide them in their own case against the accused…..

    • Ashamed to be British

      Wouldn’t any self respecting lawyer or LIP have a copy of the transcript (I appreciate most of them miss half of the points) and use that, and the FOF as part of their argument/defense?
      The police DO NOT appreciate ss one bit

  3. Pingback: Enjoy the (right to) silence | Children In Law ...

  4. But social workers and agencies cannot be guilty of contempt and perjury, they can fabricate cases, withold important evidence in the parents favour, keep false or misleading records and use these in the family court, be social with other agencies or professionals and discuss the case in breaks over lunch and even meet up with people who are not party to court proceedings and use their false statements against the parents and make false allegations.
    Where are the prosecutions for these people?

    At the same time these poor excuses for human beings then pressure the parents to own up to something they have not done, or tell on someone else for something that has not been done. Then when a ‘confession’ is not forthcoming, will then accuse them of being in denial or lying.
    But that is rich coming from the same people who have broken the law in every single way during court proceedings and have no knowlege of honesty.
    The same people will keep the police alert and believing the parents have committed a crime even when they know that is false and the same type of people do not like to be seen in the wrong and just love to abuse their powers over the poor parents.

    Why do the police not open a case against the social workers?
    Why do LAs protect them?
    Why do Judges not pass this on to the AG?

    So its all a very good case for a family court to CROSS REFERENCE all paperwork. NOT automactically trust a social worker over the parents. AND prosecute these seriously un-professional people.

    In the real interests of children.

    • Ashamed to be British

      This would stretch to judges too,a case I’m dealing with atm is one of pure emotional abuse on a young child of primary school age, yet the judge at the previous hearing refused to see evidence, refused to even hear the application, he just chucked it out without speaking to the applicant at all, so we took it back recently due to the contact order being broken, again the judge refused to hear evidence from one side yet heard HEARSAY evidence from the defendant who broke the contact order the very saME JUDGE MADEand knowing the child was being abused by the defendant, (this abuse is a ‘major concern’ to ss, play therapists and core group panels as set out in a sec 7 report) this judge let the defendant keep the chilld for the abuse to continue!

      He;s in for a shock tomorrow when asked to recuse himself -_- I am not a happy bunny at all

      • Yes some Judges just love the hearsay evidence, especially from social workers and are removing children on it.
        It is alarming and all too common.
        One Judgement shows this in all its glory. Mother, honest from start to finish. Father lied in every statement and social worker played to father.
        Mother in desperation, puts sworn affidavit into court listing all the offences of the social worker and father. This was to prove that she had never lied but all others had and she wanted the Judge to read her paperwork and the cross referencing showing this.
        The Judge tossed it all to one side, not giving a thought to it. The mother lost the children and all contact.
        As the Judge rose from her chair, she uttered, “that social worker had better not be lying, she will never work again if she has”.
        The Judge later retired having devastated a mother and her children and the social worker moved to another post.
        This is one of many documented cases.
        Does this help the murdered children or the little ones paying the price of the social workers negligence.

      • (this abuse is a ‘major concern’ to ss, play therapists and core group panels as set out in a sec 7 report) this judge let the defendant keep the chilld for the abuse to continue

        Before any court even considers emotional abuse to a child, they should first consider the emotional abuse (and other abuse) that thousands of British children have suffered at the hands of social workers.

        Are social workers ever taken to court for it and prosecuted? The answer is simply NO.
        Example. Children removed on ‘risk of severe emotional abuse’
        Court orders removal of children and put into long term care.
        All contact denied to entire birth family.
        One child has booster injection that had already been given while with the mother, causing alarm to the family GP
        One child put on drugs for a condition that has no UK licence for the dosage.
        Children having to undergo therapy, children do not respond. Siblings put into different homes. No proper contact arranged for siblings.
        Both children become seriously emotionally disturbed, Both committing offences before their teens.
        Both children abused by different foster carers. Both children moved around in care, living in both children’s homes and foster care.
        One foster carer decides to adopt them, but then changes her mind as the child rebels and the placement fails.
        The mother fights on for her children. The Judge throws out the case on the grounds of the original Judgement (risk of serious emotional harm)
        Both children lost out on education.
        One child has started self harming and becomes drug addicted.
        Both children constantly running away from care.
        One child developing medical conditions linked to prescribed drug abuse, the other child becomes a sad reflection of the child once cared for by his mother, addicted to drugs, seriously underweight and seriously emotionally damaged.
        Both siblings angry at being parted, both desperate to be with their birth family.
        Mother so distraught attempts again to request leave of court to appeal.
        Judge states the children are settled and happy in care and refuses appeal. (On advice of the social worker who lied in the original proceedings)

        Mother becomes ill with the worry of her children and suffers heart failure.
        She survives and fights again.

        Eventually on giving up on the route of the court, she and the help of friends find out the address of the children’s schools.
        The headmistress assitant states “are you the real mother, the birth mother” to which she says yes, I am. The assistant says “thank God for that the children need you, they are so damaged.

        The mother gets an address of her home through to the youngest child. He runs away from care and back to his mother, the eldest runs away also.

        The mother had the children put back into her care where they have continued to improve, gain education and re-build their future.

      • Ashamed to be British

        But in this case all parties, the social worker and play therapist et all are asking that the applicant keep the child with the defendant having supervised contact, it’s unusual for a judge to go against the LA’s recommendations, I’m finding this so frustrating, however will take the judge to JR if needs be (if he doesn’t recuse himself). I have experience of this particular judge from the past, he is very pro one gender of parent no matter what they do to their children. But in the meantime I need to get this child away from the abuser

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