Considering the impact of Findings in the Family Court
Parties arriving at Court for family proceedings will often be nervous about potential consequences for the evidence they give. Many parents find themselves facing allegations of harm or domestic abuse in private law or care proceedings, to be determined through ‘fact-finding’ hearings where they are questioned about past behaviour.
It is entirely understandable for a lay person to dwell on the consequences of giving admissions in evidence, or if they say something which would otherwise lead to criminal charges. In criminal proceedings, parties are shielded from self-incrimination. Conversely, a fact-finding hearing is not a trial in the criminal jurisdiction and has no binding effect on decisions made beyond the family Court. Nonetheless, there are exceptions to this rule as will be investigated below.
This article aims to explore the need for directions under S.98 of the Children Act 1989, and the potential impact this has in care proceedings specifically.
The Principle
The focus of the family Court is always the subject child(ren)’s welfare. The function of the Court in care proceedings is to determine allegations and risks of harm, consider who is responsible for that harm and make protective orders if necessary. This fundamentally means that parties need to give honest answers in evidence, which should include full and frank admissions or disclosures of historic behaviour.
Section 98 covers the need to balance full and frank disclosure with the general privilege which exists against self-incrimination in the adjacent criminal jurisdiction. Where an adult could be liable through giving evidence in care proceedings, the Court must consider those rights in the context of welfare of the child(ren), who are the subject of proceedings. In order to mitigate that unfairness, Parliament introduced a general presumption against criminal liability in the form of Section 98 while simultaneously introducing an ability to compel evidence from parties in care proceedings.
Statutory Framework
Section 98 provides the following:
(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.
The effect of Section 98 is that a party giving evidence must answer questions asked of them, even if those answers suggest criminal liability. However, in order to encourage the full and frank disclosure discussed above, parties are generally protected from this material being used in criminal prosecutions.
Helpfully, one such Court of Appeal case exists which explores the principle in more detail.
Re C [A Minor] (Care Proceedings: Disclosure) [1997] Fam 76 (Sub-nom Re EC [1996] 2 FLR 725) builds on the 1989 Act and led the Court of Appeal to consider material disclosure to police authorities, where evidence had been given in family proceedings. Re C confirms that Section 98 protects the use of compelled admissions in family Court evidence but does not prevent subsequent police investigations based on independent evidence recorded during family proceedings. It also establishes the checklist for disclosure that the Court must consider alongside S.98, in the judgment of Swinton Thomas LJ.
Of further note are FPR12.73 and PD12G which operate alongside S.98. FPR 12.73 covers the automatic rights to disclosure in family proceedings, and of particular note are the automatic rights for disclosure of information given in private to a welfare officer, experts instructed in proceedings, professionals acting in furtherance of the protection of children and an independent reviewing officer if appointed. Furthermore, PD12G contains provision to allow any party to proceedings to disclose the text or summary of the whole or part of a judgment given in the proceedings to a police officer for the purpose of an investigation. It is important to distinguish however that unlike disclosure under S.98, PD12G relates by necessity to findings of fact after judgment has been given, as opposed to evidence given before judgment when compelled by the Court.
Proper scrutiny must be exercised following requests by the police for evidence transcripts to be disclosed; there must be exceptional circumstances to justify such a request. It is this factor which litigants and legal representatives should be aware of when considering S.98 directions.
S.98 in Practice
So, how does a practitioner navigate the mire of S.98 directions? The Court can make a number of further directions including:
1. Restriction on disclosure
Transcripts of evidence may not be disclosed to police without further order. Police disclosure may be limited to documents that do not contain compelled admissions.
2. Clarification of statutory protection
The Court may record that answers given are subject to s.98(2) protections and recite S.98 warnings before evidence is given.
3. Management of parallel proceedings
The Court may determine whether fact-finding should proceed before or after criminal trials, although the Court will not automatically await the outcome of criminal proceedings.
Conclusion
It remains understandable why parties to litigation are hesitant before giving evidence in family proceedings. In the range of scenarios where S.98 may be applicable, there is no ‘one size fits all’ approach and directions will need to be tailored to the nature of the allegations and parties involved.
Fundamentally, S.98 does not grant immunity from prosecution, nor does it prevent derivative evidence exposed during care proceedings from being used in police investigations. It is perhaps best described as a legal device used to mitigate risks around self-incrimination to encourage transparency. The protection offered by S.98 is principally designed to assist parties in giving unfettered evidence to assist the welfare decision of the Court, not absolve parties of any historic wrongdoing. Both practitioners and litigants should consider this in the context of directions given.
Author: Joshua Melen
Enquiries about when Mr Melen will be available to accept instructions can be dealt with by emailing his clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
- Children Act 1989
- Family Procedure Rules (12.73 & PD12G)
- Re C [A Minor] (Care Proceedings: Disclosure) [1997] Fam 76 (Sub-nom Re EC [1996] 2 FLR 725)