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
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.
[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
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)
- 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)  2 FLR 1106 and by Judge LJ, as he then was, in R v. L  EWCA Crim 1902,  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.
- 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)  Fam 76, sub nom Re EC (Disclosure of Material)  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.