Section 98 Children Act self incrimination warning

What is this? What does it mean?

If you are involved in a fact finding hearing in care proceedings, that is because the court needs to find out as clearly as possible ‘the truth’ in order to move on to the next stage which is making decisions about where a child should live and who should look after the child.

You can read more about the legal principles that apply in a finding of fact hearing in this post. 

The ‘truth’ in care proceedings is ascertained on the civil standard of proof – i.e. NOT beyond reasonable doubt but on the balance of probabilities.

Often, findings of fact hearings involve injuries to a child. This is also of interest to the police and CPS who need to consider whether criminal charges should be bought against any adult who harms a child. The criminal and family courts work at different speeds, deal with different principles and have very different ways of collecting evidence. So it is not at all unusual for a family fact finding to take place BEFORE a criminal trial or even any charging decision.

When that happens the court will need to give any adult in the care proceedings a ‘section 98 warning’.

The police may be very interested to know about the decision made by the family judge and the reasoning behind it, and will often ask for copies of any written judgment from the family court.

Section 98 reads

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 [F1or 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 [F1or civil partner] in proceedings for an offence other than perjury.

Which is really no help at all, particularly as the impact of this part of the Children Act has been changed by legislation and cases that followed – see discussions in Lucy Reed’s article below in Pink Tape for more detail.

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.

Further reading

From Pink Tape – section 98, Bad or Just Misunderstood? 

 

7 thoughts on “Section 98 Children Act self incrimination warning

  1. Angelo Granda

    We know that sometimes parents are guilty of criminal offences against there own children. The interests of our children are paramount not the interests of parents or those of Local Authorities and Family Courts. I would say it is the duty of anyone and everyone to report all factual evidence of wrongdoing IMMEDIATELY to the Police including any confessions or incriminating evidence given by offenders themselves. Children have to be protected from cruelty and abuse from whatever direction it comes. A parent may commit further offences whilst the Police wait That would include lawyers and every civil court. Parents should have no protection by way of forcing the Police to ask for a court order. and who are and fully deserve criminally. A parent might commit further offences and even murder a child if there is any delay.

    As regards the suggested warning to be given by the Judge, I think I am right in respect of the second part that NO allegations are generally made against anyone. The Local Authority merely present a list of ‘concerns’ and try to demonstrate that threshold for a care-order are satisfied.

    Sarah, on the subject of Police investigations in progress simultaneously to Family Court proceedings , are you fully aware how these are allowed to influence proceedings in favour of the Local Authority and also prevent respondents from responding?

    Reply
    1. Sarah Phillimore Post author

      I am afraid you are completely wrong in your understanding of allegations. The essence of a fact finding is that allegations have to be made. The LA must prove its case. It can’t simply make vague comments. If the court doesn’t have enough evidence to identify an individual perpetrator, it can consider whether there is a ‘pool’ of possible perpetrators. But allegations absolutely have to be made.

      Reply
  2. Angelo Granda

    Sarah, It is difficult to disagree with a barrister. However, here goes. Parents are not accused of anything. From my experience , the LA doesn’t charge anyone, it simply makes an application to the Court. It then makes a decision and presents a list of matters which it believes will satisfy threshold for neglect.
    It is difficult to respond to a Court when one has done nothing wrong and there are no specific allegations merely a list of obscure concerns.

    Please give parents more credit, we KNOW what happens and, in many cases, no allegations or charges are brought. The LA don’t even ask you what has occurred, they simply go through the files and extract from them as many ‘concerns’ as it can find. Talking of concerns, it really concerns me that you claim allegations absolutely have to be made. Were documents published and were Courts open, all would be revealed to you.

    Reply
    1. Sarah Phillimore Post author

      You simply misunderstand the purpose of a fact finding. I have just finished one. The allegations against the adult were that one or the other of them had broken the child’s bones. They were specific allegations.

      i can’t do any more to convince you that you have got it wrong. ‘a list of obscure concerns’ is not what the court is looking for. There have been some sad examples of cases where the threshold was murky. But generally they are clear and specific, as the law requires them to be.

      Reply
  3. Angelo Granda

    I do agree with you , Sarah, and I can only ask you to be fair , receptive to Parent’s claims and open-minded as ever. You are quite correct to say you won’t be able to convince parents they have got it wrong. It is impossible because of the cover-ups. If the crucial documents we are discussing are not publicised and those which are subject to redaction at the whim of the system, then we can never resolve our differences.
    Indeed there will always be a chasm between those who know the truth of their individual cases and professionals.
    You appear to support a court system which denies citizens one of the basic principles of justice ( that justice be seen to be done). That is a big problem; to us, it means you are less credible.

    TWO QUESTIONS:

    What allegations would be made against an 18 year old Mum freshly out of care, lying in the maternity ward nursing her baby?

    How do the LA’s get Court orders and remove the child for adoption before she has even been given a chance?

    Reply
  4. Aissa El Yamani

    my wife have been assaulted our children from 2007 and the extremes hackney social workers they don’t want to help me to protect my child S[redacted] from from her mother they only have chance to take my child S[redacted] away from me to C[redacted] house of arrest to Hastings and they don’t allown me to see her until they have been destroyed her from 2013 until now.andon this matter I have been fighting to protection my child S[redacted] from those above extremes but from 2013 until now thereno jusetice towards those above suspects.therefore I need help please if you can.

    many thank

    Reply

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