Section 98 of the Children Act
The purpose of this section is to encourage parents to speak openly and honestly in the family court about what happened to their child. It is supposed to provide them with safeguards against the involvement of the police who might want to prosecute them for criminal offences if they admit to, or the family court finds they have, hurt their children.
However, the situation is very complicated for even experienced lawyers to understand and it seems that it would be risky for any family lawyer to attempt to reassure their client that information or admissions contained in family proceedings will stay there.
98 of the Children Act 1989 provides that:
1. In any proceedings in which a court is hearing an application for an order under Part IV and 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.
I tried to provide a ‘translation’ of this in this post.
Attempt at Plain English Version: No guarantees of confidentiality can be given by the family court.
The judge should give a warning in the following terms when a parent is being questioned about causing harm to a child:
- I need to explain a rule of law to you. Its important you understand this. Your lawyer can explain it further to you, it is their duty to do so.
- allegations are made against you in these family proceedings. The family court is not involved in any decisions made in the criminal courts about whether you should be found guilty or acquitted of any criminal offence.
- However, in these family proceedings, the court will have to decide whether or not the allegations made against you are true. If they are found to be true, this would mean you have done something which may also be a criminal offence.
- in the family proceedings you aren’t allowed to refuse to answer questions or provide evidence in writing on the basis that your answers might show you or your spouse had done something criminally wrong.
- If you do give evidence that suggests you have done something criminally wrong, this evidence is NOT allowed in any criminal proceedings against you UNLESS you are being prosecuted for perjury (i.e. you have lied on oath in the family court).
- BUT you must understand that if the family court gives permission that ANYTHING you say or write down for these proceedings may be given to the police for them to use during their investigations into your conduct AND if you did end up in a criminal court, the prosecution might make an application for permission to ask you questions about anything you said in the family court.
The court gave guidance in A Local Authority v PG  EWHC 63 (Fam) about the impact of section 98:
- 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;
- 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;
- a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA 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;
- 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;
- 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.
Some important points
Automatic disclosure of judgments under Rule 12.73
Rule 12.73 of the FPR 2010 and PD 12G mean any party has an automatic right to disclose to police/CPS whole or part of a judgment in a family case for the purpose of a criminal investigation or to enable the CPS to discharge its functions. BUT neither police nor the CPS can disclose the judgment or the information it contains to any person without the permission of the family court judge.
Factors set out in Re C 1996
The leading authority remains Re C sub nom Re EC  2 FLR 725 CA The court set out the following matters which a judge will consider when deciding to let the police have information from the family court. Each case must be decided on its merits and the importance of these factors will vary from case to case. The case also predates the shift in attitudes towards more openness in family proceedings and the impact of Articles 8 and 10 of the ECHR and the Human Rights Act 1998, so will need to be seen in that context.
- The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
- The welfare and interests of other children generally.
- The maintenance of confidentiality in children’s cases.
- The importance of encouraging frankness in children’s cases. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. But the incentive of guaranteed confidentiality is not given by the words of the section.
- The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
- The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
- The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
- The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
- In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
- Any other material disclosure which has already taken place.
A parent who confesses
There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) . This case involved a parent who confessed to causing a serious injury to a child. This confession came AFTER a fact finding hearing where the Judge couldn’t decide which parent hurt the child. On giving judgment the Judge commented that it would be possible to rehabilitate the child back to the family if the perpetrator gave a full and frank account. The father confessed to causing the injury 2 days later and the parents separated. The children went back to their mother and Baker J gave a further judgment, exonerating the mother of causing harm.
The Father then applied for an order to stop any of this information being sent to the police/CPS. The police had by now closed their file on the case. The police cross applied to see the information about the confession so they could decide whether or not to prosecute the father. Baker J allowed the police and CPS to see the judgments but with limits on their use; they could not discuss the contents of the judgments with either parent without the court’s permission.
At para 22, Baker J considered the question of whether the father’s confession could be used in criminal proceedings – was he protected by section 98? It is for the criminal courts to decide if a admission could be used as evidence within the criminal trial or whether section 98(2) provided protection but noted that he knew of no reported case where section 98(2) has been considered by the criminal courts. In the family court, such confessions have been used to ‘shape the nature and range of the inquiries’ the police undertake [Oxfordshire CC v P  1 FLR 797].
Therefore, the police can ask a suspect about his previous confession in a further interview. If the suspects admits it was truthful, that could be evidence admitted into his criminal trial. However, being questioned in a police interview in this way runs a serious risk that any protection offered by section 98 would be nullified – as recognised by the court in Re M  2 FLR 1316.
There is – as yet – no judicial answer to the question raised in Re X &Y as to whether a suspect’s confession could be raised in a criminal trial as a ‘previous inconsistent statement’ pursuant to s119 of the Criminal Justice Act 1993.
This seems to be the worst of all worlds. Of course the police are going to be interested in a confession or an adverse judgment. Of course they are going to want to rely on it and ask questions about it. It does seem that the practical use of section 98 has been considerably eroded.
It seems a shame, particularly in a climate where the police and CPS appear to await the outcomes of fact finding hearings before deciding on whether to prosecute and where there is sometimes inordinate delay in criminal trials being heard, that the laudable aim of section 98(2) to encourage frankness in the family courts is being eroded by the spectre of criminal proceedings waiting in the wings.
The section was put there for a purpose – if it was not to provide a complete shield for parents who are frank in children cases in order to encourage them to be so, what was the point of it? Is it right to leave the amount of protection it provides to a parent to be determined in the criminal courts where there is no necessity to consider the factors which may compete against the criminal jurisdiction’s perception of fairness such as the need to preserve the integrity of the family justice system as a whole in providing swift and child focused justice? Would it not be better to have children returned home to one parent quickly following being injured by the other parent than to be removed from their birth family for months at best (pending a fact finding hearing) and for life at worst (due to both parents remaining in the pool of perpetrators) even if the price for that were that the guilty parent escaped criminal prosecution? For the children in Re X & Y, perhaps it was fortunate that Baker J did not give the warning under section 98(2). It might have discouraged the Father from being frank and the children would have remained separated from both of their parents.
- With regard to the risks parents might be running in giving statements in care proceedings that might go on to be used in criminal proceedings, see this post by suesspicious minds.
- Disclosure to the police – how safe are you to speak frankly in the Family Court? Liz Ingham, Colleton Chambers.
- Section 98 of the Children Act: Bad or just misunderstood? Pink Tape
- Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings – 2013 Protocol