RSS Feed

Tag Archives: s98 children act

X and Y (Children : Disclosure of judgment) 2014


This is a case arising from care proceedings where the parents gave evidence about physical injuries to a child, and a judgment was given that the father had caused the injuries and told lies about it. The police sought disclosure (wanted to see) the judgments in the care proceedings. The father resisted.

As this case was decided by Baker J, you get the excellent distillation of the law in this area to date  (if I were still of an age where I had to write law essays, Baker J would be my first port of call for finding the answers)

As you probably know if you’ve read this blog before, I have a view on the issue of whether the police ought to be able to USE what is said by a parent in care proceedings in the criminal proceedings. I think firmly that they should not, that the whole ethos of care proceedings is to encourage and promote honesty and that the provisions of s98 of the Children Act 1989 removes a parents right to silence and as a trade-off promises them that what they say can’t be used against them in criminal proceedings for anything other than perjury.

If the police aren’t hoping to make use of the material, that rather begs the question of why they want to see it at all.  Of course it informs and shapes their investigation and the way they put their case and even the questions asked, even if the documents themselves never appear before a jury.

Baker J touches on the critical problem (a problem that keeps getting ducked by the family Courts) here

Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a “previously inconsistent statement” pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.

There are several reported cases in the family Courts where this has been raised, and they have never ruled on whether s98(2) trumps s119 or vice versa. Whilst this is undecided (and one of the cases where it was raised ends with the father who had been silent in care proceedings on advice from his criminal lawyers being committed to prison for contempt), lawyers are going to remain very apprehensive about whether their client’s interests and rights are being properly observed.

The law, at present, is very much in favour of disclosure  (that the police can SEE the documents) – there’s less reported law on whether they can USE the material.

This case only decides that the police can SEE it, and if, having seen it they wish to USE it (ie produce it in the criminal trial, or put it to the parents in police interview) they need to make another application and the Court make it clear that letting them SEE it doesn’t automatically mean that they would succeed in the next application to use it.

A very nice point was taken by the father’s team

    1. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re ECand was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.


“Prior to the hearing of the care proceedings, there were five members of SC’s family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

‘Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words ‘or your wife’ and ‘or your husband’. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. “

  1. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case

    1. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.


(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father’s article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.


      1. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y’s injuries, the court was infringing the father’s article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.


“But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.”

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.


The Judge didn’t go for it.

        1. I accept that the father’s confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court’s failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father’s right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y’s injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.


      1. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.


It is a very careful and considered judgment, and much as I dislike the outcome, I think that on the existing law, the Judge got it right. The problem is that I think that the law, as it has developed, has not properly taken account of the potential erosion of the s98 protection against self-incrimination as a result of the inconsistent statements can be put as evidence s119 Criminal Justice Act 2003.  The law which favours disclosure to the police and puts the burden on the parent resisting disclosure emerged prior to s119, and has been relied on to bolster decisions made subsequently. Without properly determining whether, notwithstanding the ability to put inconsistent statements as evidence, s98 prevents the Crown doing so where that statement was made in care proceedings, we are left at sea.

The problem for this particular case is (a) I think the judgment is right, on current law and (b) we already know that the Court of Appeal aren’t interested in the s119 argument, so an appeal isn’t much use; unless one is going to go all the way to the Supreme Court, who would be able to say either s119 trumps s98 and the prosecution of offenders is more important than honesty and openness in care proceedings, or vice versa.


(This becomes even more of an issue once all judgments are published, since even if the Court doesn’t give permission, the police who know the Local Authority area, judge who decides the case, date of the hearing and the factual background, will very readily be able to spot that Re H, L and K 2015 relates to real life people, and be able to read all about it online. As will any inquisitive juror…)

Inconsistent statements and eating more porridge than Orinoco Womble

The decision of the Court of Appeal in Re L-R (Children) 2013, which was an 18 month sentence for not giving evidence

The case involved the appeal of a father from a committal for contempt for his refusal to give evidence in care proceedings during a finding of fact hearing and he received an 18 month custodial sentence as a result of the committal.

I have written before about where section 98 stands, now that section 119 of the Criminal Justice Act 2003 allows for evidence of inconsistent statements to be used in criminal proceedings.

Section 98 is designed to do two things – firstly in subsection (1) to compel a parent to give evidence in care proceedings and (2) to ensure that their right to silence in criminal proceedings is preserved by ensuring that the evidence they give in care proceedings can’t be used against them in criminal proceedings.

98 Self incrimination
(1)  In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)  giving evidence on any matter; or

(b)  answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2)  A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.”

In the writer’s humble opinion, the intention of section 98 is a very important one. In order to properly and fairly decide matters relating to children it is vital that the Court hear frank and candid evidence from parents, and in order that they feel able to give that evidence with candour and honesty it is vital that they be able to do so without fear.

The father in this case, and other parents in other cases where criminal proceedings are pending or contemplated, are receiving conflicting legal advice. Their family lawyers are telling them of the need for frankness and candour, and the criminal solicitors are warning them that if they speak frankly and candidly, those words might come back to bite them in criminal proceedings.

It is therefore very disappointing that when given the opportunity to resolve this tension, or to indicate that in relation to evidence given in court in family proceedings, s119 CJA might be incompatible with Article 6, the Court of Appeal firmly pushed the problem over to the criminal courts.

16. In this appeal we have been invited to give guidance on the approach to be taken in this regard where there are concurrent criminal proceedings and family proceedings.  For my part I do not see that the issue arises in any form on the facts of the present case where, as I will in due course relate, Mr K effectively provided no material information to the Family Court that might fall for disclosure into the criminal process.

17. Going further, and looking at the matter more generally, the position as a matter of law and practice in the Family Court has been well settled since Re EC.  If problems are to arise, they are much more likely to surface in front of the criminal judge in the Crown Court and relate to how any disclosed material is to be deployed in the criminal process.

18. As such it seems to me that this civil court, both on the facts of this case where the issue simply does not arise and more generally, should resist the encouragement to give general guidance on this topic. 

In doing this, and in upholding both the committal for contempt for not giving evidence and the sentence, the Court of Appeal have put parents and those representing them in a considerable spot.

In the family proceedings, the parent must give evidence – if they do not, not only will adverse inferences be drawn, but they may be committed for contempt and face a custodial sentence. That sentence might be 18 months. Their family lawyer MUST therefore advise them to give evidence.

But it is uncertain whether that evidence can be deployed by the police and CPS in a criminal prosecution IF it shows that the parent has given an inconsistent statement.   (If father gives a no comment answer in police interview, but answers the same or similar question in the family case, that appears to me to be capable of being an inconsistent statement)

That being the case, their criminal lawyer would have to advise them that for the purposes of the criminal trial, it would be better for them not to give evidence in the family court.

Until such time as a criminal court decides – yes, s119 CJA 2003 overrides s98 Children Act 1989 and that the evidence of an inconsistent statement can be used in the prosecution of a parent for an offence other than for perjury, OR determines the opposite, a parent may very well be unwillingly waiving their right not to self-incriminate and their right to silence. They are at least taking the risk that they might be.

Imprisoning someone for following legal advice doesn’t sit too well with me. I hope that the criminal courts do address this issue soon.  I suspect that if and when they do, it will be in favour of s119, not s98  – the criminal courts are certainly far more familiar with the former than the latter.

The other approach is for the family courts to row back from the previous policy of generously giving the police information and material that might inform their investigation, pace Re EC [1996] 2 FLR 625 which established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process.

That case of course, was decided on the basis that the parents were protected wholly from self-incrimination by s98, which may no longer be the case.