Below is an article of mine published in Family Law Journal in July of this year, reproduced with kind permission of Jordans.
Section 98 of the Children Act 1989 (the 1989 Act) is one of several provisions that languish towards the tail end of the Act, often forgotten or misremembered in its precise effect by busy practitioners – and it has a tendency to emerge as relevant with little warning. As such it is worth reminding oneself periodically of its application to avoid being caught out. Section 98(1) is one of several statutory provisions which suspends self-incrimination privilege in specified contexts. In this case it renders parents compellable in care proceedings notwithstanding the provision of s 14 of the Civil Evidence Act 1968 (the 1968 Act) (which protects witnesses in civil proceedings from self-incrimination).
Section 98(2) then, is the quid pro quo – the offer of conditional secondary privilege which limits the use to which evidence given under compulsion pursuant to s 98(1) can be put. It provides that a statement or admission made in the proceedings is not admissible in evidence against the maker (or his spouse/civil partner) in criminal proceedings, except in the case of a perjury charge. As both judges and commentators have observed, however, s 98(2) offers nothing like a guarantee that parents who respond to encouragement or demands of frankness will be insulated against consequences in the criminal forum.
This is not least because of subsequent amendments of both primary and secondary legislation, for example: through the implementation of s 119 of the Criminal Justice Act 2003 (the 2003 Act) relating to the admissibility of previous inconsistent statements as evidence in criminal proceedings, and the relaxation of the rules on disclosure begun by the amendment in 2005 of the (then) Family Proceedings Rules 1991, which permitted automatic disclosure of information to the police and Crown Prosecution Service (‘CPS’) for specified purposes only (namely the furtherance of criminal investigation or to allow the CPS to discharge its functions). Those amendments survive in r 12.73 and PD12G of the Family Procedure Rules 2010 (FPR 2010) (and there are mirror provisions in r 14.14/PD14E relating to adoption/placement proceedings), and it has been argued by at least one commentator in the criminal context (‘The Self-incrimination Privilege in Care Proceedings and the Criminal Trial and “shall not be admissible in evidence”?’ JCL 73 (48) 1 February 2009 (S Edwards)) that these provisions of the FPR 2010 ‘potentially subvert s 98(2) of the 1989 Act, arrogating the FPR above statute’. If that were true in 2005 what then is the situation now when, pursuant to the President’s Transparency Guidance issued in January 2014, judgments setting out the contents of witness statements, admissions, findings and other inculpatory material will regularly be published to the world at large – anonymised but potentially identifiable to both prosecutors and any jury member with access to the internet (see for example the factual information contained in the judgment of Keehan J in A Local Authority v DG and Others (below))? Schedule 1(i) of the Transparency Guidance identifies judgments arising from a ‘substantial contested fact-finding hearing at which serious allegations, eg allegations of significant physical, emotional or sexual harm, have been determined’ as likely candidates for publication, and such judgments are likely to emanate from both private and public law cases.
In October 2013 the Protocol and Good Practice Model – Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings was issued. It devotes an entire section to the correct approach to disclosure of information from family proceedings for the purposes of criminal investigation or prosecution. Several judges of the Family Division have grappled over recent months with questions of disclosure of evidence given in family proceedings for reasons connected with investigation or prosecution of crime, and so it seems timely to review recent judicial attitudes towards disclosure to investigating or prosecuting authorities and in particular regarding s 98.
In A Local Authority v DG and Others  EWHC 63 (Fam),  2 FLR (forthcoming and reported at April  Fam Law 433) (‘A LA v DG’) Keehan J dealt with case management issues arising within care proceedings where there were concurrent criminal proceedings, following the alleged murder of the mother by the father. In that case the father had been advised by his criminal lawyers not to comply with the direction for filing a response to threshold until the defence statement had been served within the criminal proceedings. Although that was consistent with general practice in cases of linked care and criminal proceedings, and arose in part from an absence of guidance, it was wholly unacceptable in light of the provisions of s 98. The court gave guidance, which makes clear that whilst a legal practitioner may advise a client of the provisions and import of s 98 and the ability of the police or co-accused to make applications for disclosure into the criminal proceedings of statements, reports and documents filed within the care proceedings, it is wholly inappropriate – and potentially a contempt of court – for a legal practitioner to advise a client not to comply with an order made in care proceedings or to advise a client not to give a full, accurate and comprehensive response to findings sought. For these purposes the date upon which the defence statement in criminal proceedings is due is wholly irrelevant. Any issues about prejudice to a defendant based upon the timing of a direction to file a response to threshold or a narrative statement within care proceedings arise if and when an application for disclosure of documents is made.
In X and Y (Children: Disclosure of Judgment to Police)  EWHC 278 (Fam),  2 FLR (forthcoming and reported above at p 961) Baker J considered whether his judgment setting out findings and admissions by the father of having inflicted injuries on his child (or other documents within the care proceedings) should be released to the police, the father having made an application for an order prohibiting the release, which would otherwise have been permissible under the FPR 2010. Baker J considered the guidance in Re EC (Disclosure of Material)  2 FLR 725 CA, noting that whilst the balance as between the factors identified in the 10-point guidance of Swinton-Thomas LJ in that case may have shifted following the enactment of the Human Rights Act 1998, the guidance remained valid and Re EC remains the leading authority.
Baker J concluded that, notwithstanding his earlier failure to give the father a s 98 warning alerting the father to the risk of disclosure of any admission, there had been no unfairness or breach of the father’s Art 6 rights within the care proceedings: in view of the father’s admission and the children’s rehabilitation to their mother, the outcome was manifestly fair. Baker J further concluded that it was appropriate for the police to be made aware of the outcome of the fact-finding exercise through the disclosure of the judgment (in part this appears to have been with an eye on the fact that they would have had some but incomplete information as a result of having combined the published anonymised judgment with their own knowledge of the case and put two and two together). Such disclosure would permit consideration by the police of whether they should reopen their investigation and would inform the question of whether a further application for disclosure was warranted. The court imposed restrictions upon any further use or disclosure of the material, and arguments about the potential unfairness to the father arising from the circumstances giving rise to his admission could appropriately be redeployed at the point of any application to lift the restrictions and permit wider use of the material.
Y v Z (Publicity: Sch 1 Proceedings)  EWHC 650 (Fam),  2 FLR (forthcoming and reported above at p 973) is a judgment on appeal before Bodey J with a rather different factual background, and where the use of material was constrained not by s 98 but by the duty of confidentiality that flows from the duty of full and frank disclosure in financial proceedings. There the mother in Sch 1 proceedings had wished to disclose evidence arising from the proceedings to the CPS, the police and the Financial Conduct Authority – significantly this was not a case of a prosecuting or investigating authority seeking material but a case of an aggrieved litigant wishing to report her ex to them. The evidence related to the father’s dishonest evidence within proceedings concerning his interest in a company. An injunction made at first instance prohibited the mother from making such disclosure and she appealed the making of the injunction. Her appeal was dismissed.
Although the issues and the balancing exercise will be materially different as between child protection issues in public law proceedings and private law financial cases, and although Y v Z was, on one level, very fact specific; its careful exposition of the potentially relevant factors and the likely approach of the court to questions of disclosure of evidence of criminality to the authorities is a useful reference point for cases with even quite different factual bases.
The meaning and operation of s 98 is less than straightforward to understand for practitioners (let alone for the parties themselves) and, oddly, most consideration of it has been by family judges whose view is that, ultimately, s 98 is a matter for their criminal brethren whilst at the same time criminal authorities on the point are notable by their absence. Further, s 98 is only one aspect of the restrictive framework that regulates the flow and use of Family Court information in the criminal context, and the fact that questions of fairness and admissibility in the criminal proceedings remains entirely hypothetical (although relevant background to the disclosure decision) unless and until the court has both released such evidence to the CPS or police and permitted its onward communication or further use. Only at that stage will a criminal judge ever find himself having to untangle s 98(2) of the 1989 Act and s 119 of the 2003 Act and, thereafter, exercise any discretion regarding such material. This point emerges on a careful analysis of Baker J’s judgment in X and Y.
While this article cannot hope to cover this area in anything more than overview, the following basic points apply:
•Unless the court specifically prevents it, the police and CPS are entitled to a copy of a judgment arising from family proceedings pursuant to r 12.73 and PD12G/r 14.14 and PD14E.
•The police are also entitled to information in furtherance of their child protection duties but this does not extend to the use of such information in other contexts.
•Where the court specifically permits it, the police and CPS are also entitled to further information and documents.
•Unless the court specifically authorises it, the use to which a judgment may be put is limited to the purposes set out in PD12G/14E or as specified by the Family Court, eg in furtherance of child protection and/or investigation of crime.
•The Family Court when making disclosure decisions will have regard to the likely protection offered through s 98(2) in the instant case (and the uncertainty in that regard) and will anxiously focus on the purpose of s 98 which must be the strong public interest in the encouragement of frankness in matters concerning child protection, with due regard to the public interest in the prosecution of serious crime.
•Unless disapplied by specific order, s 12 of the Administration of Justice Act 1960 (the 1960 Act) taken with the FPR 2010 renders the publication of information relating to the proceedings to the public at large or a section of the public a contempt of court, thus constraining the use of material in evidence/use in open court unless the Family Court has permitted it.
•The Family Court may permit disclosure of specified documents but may do so on terms, eg for specific purposes and/or subject to specific constraints on use (see Baker J in X and Y).
•Careful reading of Part B of the Protocol and Good Practice Model illustrates the operation and interplay of these points in practice and will be a useful reference point.
•Whilst the Protocol and most authorities in this area relate to disclosure in cases of child abuse, similar issues arise where the court hears evidence regarding serious domestic violence or other abuse of an adult.
As for s 98 itself, in the event that material has been disclosed and does not remain subject to a restriction emanating from the Family Court on its use, the following propositions seem tolerably clear from the authorities:
•A ‘statement made in the [care] proceedings’ can encompass written statements, oral evidence and statements made to the guardian, an expert instructed within the proceedings and in some circumstances the social worker (see eg Wall J in A Chief Constable v A County Council and Others  EWHC 2198 (Fam)) thereby falling within s 98(2)).
•Section 98(2) precludes only ‘admission into evidence’ in criminal proceedings but does not itself preclude use of material in the course of a police inquiry or prevent disclosure to the CPS (Re X Children  EWHC 372 (Fam),  1 FLR 589 per Munby J (as he then was)).
•Nor, it seems, does s 98(2) prevent the police from questioning a suspect about a statement made in the care proceedings, however such an interview may well prove inadmissible under s 78 of the Police and Criminal Evidence Act 1984 (the 1984 Act) if arguments of duress are run.
•Section 98(2) probably does not prevent the use of the material in cross-examination, which has been held not to amount to ‘use against’ the defendant (see eg Re EC) but there may be complications arising where there are co-defendants who wish to use the material in their defence.
•Even if s 98(2) does not prohibit the use of the material in question, the criminal court will likely have to exercise discretion pursuant to s 78 of the 1984 Act in particular, and with regard to Art 6 ECHR, and the fact and circumstances of compulsion along with the extent and terms of any judicial reassurances offered are likely to be highly material to the exercise of such discretion.
•There is little in the way of reported decisions regarding the interplay between s 98(2) and s 119 of the 2003 Act but there is an obvious tension (it was argued before Keehan J in A Local Authority v DG and Others but it was not necessary to determine that argument for the purposes of the judgment), but there is a risk that s 119 of the 2003 Act may have eroded the protection available under s 98(2) by rendering a previous inconsistent statement made in care proceedings admissible in evidence (reported authority gives us no definitive answer to date). Although in Re EC it was said that putting such inconsistent statements to a witness to challenge their evidence or attack their credibility does not fall within s 98(2) because it does not amount to ‘being used against’; in Re L (Care: Confidentiality)  1 FLR 165 the police conceded that in light of s 98 they should not use statements or admissions in criminal proceedings. There can of course be neither a guarantee that the police/prosecution will always take a similar view nor that any criminal court will do likewise. However an assurance offered by the applicant for disclosure at the point of application in the Family Court would no doubt be material to the question of unfairness under s 78 of the 1984 Act.
•Section 98 is not limited in its effect to parents. ‘Any person’ could include (self-evidently) a potential perpetrator or other witness whether or not an intervenor or party.
It is evident from a consideration of the authorities in this area that judicial approaches in the family context have fluctuated over time: whilst Wall J (as he then was) considered in Re AB (A Child) (Care Proceedings: Disclosure of Medical Evidence to Police)  EWHC 2198 (Fam),  1 FLR 579 that s 98 provided ‘substantial protection’ others have subsequently described such protection as ‘illusory’ (‘Disclosure of Documents From Children Act Proceedings’  Fam Law 454 and HHJ R Denyer QC, ‘Section 98(2) of the Children Act 1989: A Somewhat Illusory Shield’  Fam Law 151). This, therefore, represents an area of ongoing risk and uncertainty that should be highlighted when advising clients.
For example, whilst in Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence)  EWHC 372 (Fam),  2 FLR 690, Holman J, faced with a contemptuous parent who refused to give evidence on advice of his criminal counsel, held up his hands and felt unable to draw adverse inferences; more recently Keehan J in A Local Authority v DG and Others made plain that such advice is itself a potential contempt (notwithstanding its hitherto widespread employment) and that frankness of parents was both expected and demanded. Practitioners should read Keehan J’s judgment carefully. Keehan J’s judgment was foreshadowed by In the Matter of L-R (Children)  EWCA Civ 1129), where the Court of Appeal upheld a sentence of imprisonment of 18 months for contempt of court for a refusal of a father to answer questions whilst a murder charge was outstanding. (As an aside, lawyers for parents in these cases should have an eye on the developing jurisprudence in the post-Jackson civil arena, where sanctions for breach of court orders are treated increasingly harshly. See, for example, Chartwell Estate Agents Ltd v Fergies Properties SA and Another  EWCA Civ 506 and compare CPR, rr 33.10 and 3.9 with their FPR counterparts rr 22.10 and 4.6 respectively. Whilst the search for truth in furtherance of the objective of child protection may mean the Family Court will be more ready to grant relief from sanction insofar as it precludes reliance by a parent on a late filed witness statement, there are hints that Family Judges may be increasingly ready to impose costs or other sanctions instead, including against lawyers where appropriate).
Furthermore, in Re EC the court considered that ultimately s 98 was a matter for the criminal court, but issued 10-point guidance for application in considering disclosure applications. In X v Y, however, Baker J was prepared to make quite complex orders giving wide disclosure but retaining control over the use of the disclosed material. It appears that whilst strictly such specific orders were not necessary as a result of the operation of the provisions on purpose-based communication of information in the FPR (taken with s 12 of the 1960 Act), Baker J felt that some buttressing was necessary to ensure that the public interest in proper decisions being made about whether prosecutions should be brought was not improperly curtailed by the Family Court’s actions, whilst avoiding prejudice to the father by wholesale release of material beyond that which was necessary to meet that end.
Finally, in Re AB Wall J said there was a particular duty laid on lawyers to explain s 98 clearly to their clients and to ensure that the explanation is fully understood. This is plainly the responsibility of legal advisers, but it is a difficult responsibility to successfully fulfil. As we move towards more and more transparency, with the judiciary feeling the need to ‘buttress’ s 12 of the 1960 Act with specific orders to ensure there is no misunderstanding regarding the use to which disclosed documents may be put (see X and Y), there is perhaps a good basis for respectfully suggesting that some of that burden should be taken up by the family judiciary through the provision of appropriate warnings. Indeed in X and Y counsel for the father went to so far as to suggest proposed wording:
‘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.’
It is worth noting that the position in private law proceedings is quite different. Section 98 does not apply to applications for orders under Parts II or III of the 1989 Act, that is to say private law proceedings – with the exception (arguably) of private law proceedings where the court is considering the making of an interim care order pursuant to s 38(1)(b) of the 1989 Act.
The effect of this is that within private law proceedings s 14 of the 1968 Act applies, so a parent cannot be compelled to answer a question which may incriminate him (or his spouse/civil partner). The effect of this provision assumes greater significance in the context of the significant increase in the numbers of litigants in person since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) legal aid reforms, in particular the availability of legal aid only for the alleged victim of domestic abuse rather than the alleged perpetrator; and even greater potential significance where the outcomes of findings of fact hearings in the context of private law disputes are now far more likely to be reported (anonymously) under the auspices of the recent transparency guidance. It is suggested that it is good – but not yet common – practice for litigants in person facing serious allegations of violence or abuse in private law proceedings to be given a plain English explanation by the judge of the significance of s 14 and the concomitant ability of the court to go on to draw adverse inferences in the event of non-cooperation. Parents in private law proceedings, likely often to be in person, will have little protection (other than through PACE and the provisions of s 12 of the 1960 Act) against the use of statements made in family proceedings against them in criminal investigations or trial, and yet allegations may be very grave.
Further, the publication of judgments arising from both private and public law cases (albeit anonymised) will undoubtedly result in greater ‘leakage’ of information that may lead indirectly to applications for disclosure that might not have arisen before. Plainly, post-LASPO, the responsibility for warning parents in private law cases will fall largely upon the judiciary, and in these cases even without s 98 judges will be required to carry out a similar balancing exercise in the knowledge that a parent may be unaware of the significance of disclosure or able to marshal arguments for or against it.
Drawing all this together, what practice points arise?
•Witnesses in care proceedings against whom findings are sought ought routinely to be given a ‘s 98 warning’ by the judge, and one which spells out both the protection offered by s 98 and the limitations on that protection, in particular that the starting point is for release of the judgment. Advocates should be prepared to invite judges to give such warnings, and legal representatives should take care to explain the risks and protections offered by s 98 in privileged discussions, in particular that the application of s 98 at criminal trial is uncertain, and that a prohibition against release of admissions or findings and against the risk of consequential criminal prosecution cannot be guaranteed, whilst taking care to give appropriate advice regarding the court’s expectation of full and frank disclosure.
•Within private law proceedings where there are findings sought of child abuse or serious domestic abuse, an equivalent but different warning ought to be given to those against whom findings are sought, a fortiori where that person is without legal representation. Such warnings should outline the right to decline to give evidence or answer questions that might incriminate, the inability of the court to compel the giving of evidence, the power to draw adverse inferences and the court’s powers vis-à-vis disclosure of judgments and other documents. Again, advocates (most likely for the child or the other parent) ought to consider inviting the judge (or legal adviser) to give such warning in order to avoid difficulty further down the line.
•Representatives of parents and interveners must be astute that in order to prevent disclosure of judgments to the police it will be necessary to make a prompt application for a prohibitive order, and that consideration should be given to whether or not partial disclosure accompanied by restrictions on use might be justified whereas a blanket ban on any disclosure may not.
•The implications of the publication of large numbers of anonymised versions of judgments have yet to be fully worked through. Is it entirely clear for example that the rubric prevents an investigating officer who has pieced together the fact that a judgment containing an admission relates to their suspect from putting that to him in interview? Does the making of orders of the sort made by Baker J restricting the use of material imply that the rubric in itself is insufficient to prohibit prosecution counsel putting an admission contained in an anonymised published judgment to a suspect in court pursuant to s 119 of the 2003 Act? Will the routine publication of anonymised judgments in cases of child abuse or serious domestic violence lead to an upsurge in the number of applications for disclosure by the police?
•Those advising parents within care proceedings may need to alert their counterpart dealing with any connected criminal matters to the judgment of Keehan J in A Local Authority v DG and Others in order to ensure that a client is not inadvertently given inappropriate or confused advice about his position.
•In fact it is the Family Court’s power to control the use of its own material upon which family practitioners should focus, rather than s 98 itself, which is primarily a provision that bears upon criminal process. Prior ever to the engagement of s 98 of the 1989 Act, the effect of s 12 of the 1960 Act and any rubric or specific injunctive order will be to restrict the use that can in practice be made of any evidence – that is to say quite apart from questions of formal admissibility of evidence, the hands of the investigating and prosecuting authorities are tied by the requirements of anonymity unless and until they have been granted relief by the Family Court.
•Practitioners may wish to seek buttressing orders of the sort made by Baker J in X v Y and invite the court to adopt a similar staged approach to disclosure as in that case, rather than taking it on a once and for all basis. Clarification should be sought as to the purpose to which material will be put if applications for disclosure are not specific and the court invited to record any reassurance offered by the police or CPS as to the use to which the material will (and will not) be put.