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 [2014] 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 [1996] 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) [2014]. 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 [1995] 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 [2001] 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.
Further Reading
- 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
What about unlawful actions including criminal malpractice and false representions (under oath) by LA,s and Guardians exposed in Family Courts?
It appears to parents that once the Authorities instigate civil court proceedings they have carte Blanche to do and say what they wish without any accountability.
Is this down to Section 98.2.Children Act?
The fact that matters have been subject to Family proceedings is certainly cited by the L.G. Ombudsman as reason to investigate thus negating the aims of the official complaints procedure.
When parents complain to the Police to raise their interest in official malpractices, they also refuse to help if matters have been exposed in the civil court.
This suggests section 98 absolves the authorities from unlawfulness .
All comments welcome.
Correction.The ombudsman cites civil court proceedings as the reason they will NOT investigate.
Sorry for the slip.
I think the reason why the LGO will often refuse to investigate is that if you are complaining about a court process, you need to appeal that court process to a higher court. the LGO cannot investigate court procedures easily and it seems pointless if the obvious remedy is to go through the appeals process. Its also arguably an abuse of process if you ask an LGO to ‘overturn’ a court order. They don’t have that power, and nor should they.
No,parents complain to the LGO as stage 4 of the LA official complaints procedure. That has nothing to do with the court process which may or may not warrant a legal appeal.
The ombudsman will refuse to get involved if even one small detail of the matter has been considered in a civil family court
In effect ,this absolves the LA from accountability as the complaints procedure cannot be implemented to the final stage.
No, I don’t think section 98 has anything to do with absolving authorities from unlawfulness. It exists to try and encourage people to be open and honest in their evidence in the family courts by saying that it is not automatic that the criminal courts will get access to anything they write or say. However, that protection is being eroded it seems and the trend is more towards allowing the criminal court access to information from family courts. So its nothing to do with absolving authorities. It was supposed to encourage free and frank evidence.
Thank you for your reply,Sarah.If they ate not absolved by section 98, might I propose that either the Judge,the Guardian or the respondent’s barrister report unlawfulness immediately for prospective prosecution.
As professionals, the Police would take the report MRE seriously not refuse to investigate as a matter of course when parents go to them for help.
I would add here that Police are often well aware that background information and other evidence passed to them by the Local Authority is false following their own thorough investigation of facts around S47 ‘s and possible criminal charges.This will be the reason why they don’t take any action against parents.
Thus should family court lawyers find LA’s have acted unlawfully in anyway,they should not hesitate in triggering safeguards on the behalf of children whose interests are paramount
We have to put our duty to the truth before professionals who distort and act unlawfully.
They should be placed in handcuffs and taken out of court in my opinion.
In the circumstances described above, it may transpire that were a barrister or Judge to report LA lawbreaking to the Police that the force does not act appropriately to the seriousness of the findings made against the LA in the civil Family Court . We have to consider that the Police child-protection squad work with the CS and ,as colleagues, will tend to co-operate with the LA and effect a cover-up. They will be reluctant to fully investigate their own colleagues especially if they themselves have been involved in any malpractice. Thus ,if this happens, a report should be made to the regional crime squad.
I find the behaviour of lawyers reprehensible not only when they brush the deliberate,unlawful removal of children under the carpet when it is identified in court but also seriously unethical when ( in the case of wrongly-used S20’s ) they actually ADVISE parents to sign!
We should be asking why?
Also for what reasons do LA’s continually abuse voluntary accommodation,what do they gain?
Answers please,all welcome!
Because often the alternative to section 20 is contested care proceedings – which are adversarial and expensive and most people want to avoid them. I think the hope in many cases is that matters can be resolved with a short period of time with the children being accommodated. Problems have arisen when cases ‘drift’ – I had one case involving a woman who had serious drug addiction problems and made various attempts to detox and failed. No one wanted her child to be adopted as they clearly had a good relationship. The problem was that after 2 years of this it was clear that the mother was going to struggle getting clean and her child was left in foster care. In hindsight, the LA should have taken action much, much sooner.
Angelo, your comments appear to completely disregard the fact that some parents do struggle and some children are not safe and that not every mistake made by a LA is born out of a malicious disregard for law or desire to steal children. Hindsight is a gift.
Are you taking the mickey or are you so wrapped up with twitwitter that you don’t read comments on your own pages properly?
Your last paragraph totally ignores my thoughts and opinions as expressed over several months now!
In fact, your reaction is so,so typical of those met by parents who try to engage with their lawyers and other professionals during family court proceedings.No-one listens to them.
Sarah,you seem to have great difficulty accepting a very simple concept ,one that is soon picked up upon by child-victims of the system and their parents.
When public officials behave unlawfully,on the balance of probabilities,they do so deliberately with illegal intent.
I find your failure to understand that curious as you are a lawyer because were,for example,a common or garden child-abuser off the street were to enter a home or hospital and take a child away unlawfully,I presume you would contact the Police immediately.
Have another go at answering the question but this time bear all possibilities in mind not just that of a poor,overworked,tired sw under pressure to ‘rescue’ a child before even investigating whether intervention is required.
Are you deliberately trying to be rude and insulting or are you having a bad day for some other reason?
You repeat the same type of comment over and over again. I make the same response over and over again – that you seem incapable of recognising that some care proceedings are taken with very good reason and I am more likely to criticise a LA for being slow to act than to be acting too quickly and without regard to due process.
I therefore reject your assertion that when public bodies behave unlawfully this is necessarily deliberate and with malice aforethought.
I have explained why I reject this assertion at great length and in many posts.
If you think my ability to engage in debate is impeded by my activities elsewhere, then you are under no compulsion to continue to read and comment on this site.
I never deliberately try to be rude.I usually like to temper my criticisms when I can to avoid marginalisation as suffered by those campaigners and mutters on other social media and the more extremist websites.
Please remember that I lambasted no-one personally just the judicial system as a whole.Individuals should merely examine their own conscience and the part they play in the grand scheme of things.
Over the months, I have tried my utmost to illustrate to readers my general theme that very often SW’s do not act maliciously; they are indoctrinated with certain core ideologies which ate false and they are compelled to follow them by the LA’s and managers . On a recent thread you and I discussed malice together and I granted it then that malice is often absent from the equation even when LA’s remove children unlawfully for sexual and financial exploitation.Thus ,in my turn,I reject your assertion that I consider such actions necessarily deliberate and malicious.
Also I have always acknowledged that some families and parents do neglect children and I support intervention in accordance with the criminal statutes and/or the Children Act as and when justified.Indeed , I have called for more powers to be handed to the civil courts enabling them to impose and enforce more proportionate sanctions such as probation orders,ASBO’s and so on.
Sarah,I wrote in my last comment(above) that when the authorities act unlawfully,remove children unlawfully,concoct false evidence,alter reports etc.,that on the BALANCE OF POSSIBILITIES ,they act with illegal intent.
When considering the b of p, we have to consider all possibilities not only the excuse you have made above.
We have to consider reality too.
Very often,children are removed unlawfully because there are no genuine concerns and no evidence with which to obtain a court order.The intent is very clearly to detach the children,from their parents,to traumatise and/or abuse them ,then to produce contrived and invented evidence after a one-sided search through the database to blame the parents for it.
The children are torn from their roots,illegally appointed new doctors and their real doctors are unable to check or give evidence as to the abuse and trauma they have suffered in care.
The new,illicit doctors are wro fly informed by the LA that any harm is due to parental abuse and neglect.
I have also criticised lawyers who advise parents to sign S20’s just to please the LA’s.Please note,I am not referring to barristers who enter the stage much later on.
I mean solicitors.Parents get solicitors to help them and intervene actively on their side not to assist in abusing the law.We don’t expect a dullard who ignores the very real possibility that their children will be laid open to sexual and other cruel treatment in care.
Please consider all possibilities.Don’t let us refuse to face the most awful ones.
All comments welcome.
BTW ,a judgment publicised last week confirms everything I have written about concocted evidence and altered reports.The main offender was promoted to a more senior position!
Without wanting to insult any lawyer to excess and without wishing to be rude at all,I just want to make a point; I know hindsight is a gift but when lawyers allow public authorities to act unlawfully as they often appear to do ,it may be right indeed there is no legitimate intent but legal judgment should be exercised strictly in accordance with the actions taken not with the intents right or wrong.
What the lawyers are actually doing is granting the authorities a pass to act as they wish on their word of HONOUR which they do not deserve.
During my career I have made the same mistake and granted parole in the same way thinking,well they are just ordinary folk like you and I ,not malicious at all.Giving lawbreakers the benefit of the doubt is taking a big chance and sensible people will have the foresight not to do so.
Believe me ,Sarah, when criminals are granted such parole and get away with it they smile , laugh, shake hands with one but behind your back,they are chortling ” Thank you so much,suckers!”
Correction
It may be right there is no ILLEGITIMATE intent.
I cannot speak for all the others lawyers in this country but I can speak for me. I am about to embark on a pro bono case which is going to appeal. I am going to get paid nothing, I will lose the opportunity to spend time with my friends and family but I am doing it because I think it is important to challenge the courts when they get things wrong.
I am certainly not the only lawyer in this country who takes on such pro bono work.
it is a great shame that lawyers can’t be paid to do this more often as I agree it is ncesssary.
But I hope you can understand why I get irritated at what appears to be your constant and blanket assertions that lawyers don’t care or don’t do anything when the system gets things wrong.
I fully acknowledge their are many barristers in the family court arena dedicated to justice and naturally this includes you and other members of the transparency project.
I don’t want to irritate you so I hope to placate feelings again by saying I refer to solicitors mainly as LAWYERS .For me,a barrister is someone trained to argue matters in court and ask questions ,mediate etc between parties.They take instructions from the solicitors who commission them and if the latter are incompetent and/or disposed towards the opinions and aims ( biased) then the barrister’s ability to respond effectively on behalf of parents is negated to a great extent.This will be because of the ripple effect of dishonesty and the flouting of fair process at a much earlier stage. Within ten minutes of reading case papers ( which are basically FAKE dossiers) ,it is obvious to you that the outcome is pre-set.
At the very core of the broken system is the incompetence and inadequate representation provided by solicitors.
I trust, Sarah, you are fully aware that my feelings about solicitors are shared by your own bar council chairman who wrote on the subject to the secretary of state of how gross miscarriages of justice are caused by these solicitors.I have mentioned it before so don’t say I am wrong.
Two firms of solicitors I have employed have been intervened and closed down by the authorities just after my cases were completed.I hesitate to use the word corrupt because the word is often misunderstood.I assure you,however,that once a client has been awarded a funding certificate in favour of a solicitor , that solicitor appears to lose all interest in the client apart from the bare essentials.Cases are handled by trainees who interview clients.These people are young and inexperienced and unable to understand basics such as ‘ false’ or ‘perjury’ when a client broaches the matter contained in applications and documents.The last case where I was involved,far from any barrister,I did not even get a qualified solicitor just a trainee solicitor who asked no questions at all.
Sadly,the justice system is broken and this is obvious when you have to work pro bono.
!
I have written before, readers, that we have to try and get right inside the flawed system.
When,as described above, lawyers grant parole to public officials who act unlawfully, I would say they compromise the civil judiciary system as a whole. A precedent is set and on all occasions,the culpable party can turn round at professional meetings and so on and say ” come on, you let it pass before”. They come to expect unmerited allowances for their reckless actions and actually rely on them being made.
This is the way of life in all systems and how malpractice and unacceptable spanish practices become the norm.
I believe due process should be sacrosanct in Court; article 8 demands a binary,scrupulous approach to proceedings.
All comments welcome.
As regards to the post above , might I add that parents do not mind being held responsible for their actions normally ,they expect to be accountable for their faults in proportion to them ,of course.If they admit to law-breaking in the inferior court or incriminate themselves,then the Police should be informed.The Family Court should never usurp the power of the higher courts and grant itself the power to make disproportionate orders without full investigation of the issues.
It follows on that professionals who act unlawfully and make admissions or incriminating disclosures in the Family Court should immediately be reported to the Police for a thorough investigation of all issues.
Readers, the civil court Judges cannot deal with them any better than they can criminal parents.Major matters such as suspected perjury or the perverting of justice in other ways FULLY WARRANTS arrest and Police action.
When caught out,professionals are like cornered rats,will make further misrepresentations and go for a parent’s jugular.Anything to justify themselves and win a case!
It takes an experienced detective to grill them and break them down to get to the bottom of LA malpractice.Also a detective and a Police Authority to get inside the office to access records,e-mails and other interdepartmental communications.
I have written before about the homeostatic processes which work against reform and which protect the status-quo.Obviously,the problem takes the form of self-preservation of management and LA legals.They are to blame for the incompetence of ordinary front line SW’s so they cover-up for them or perhaps throw them to the wolves.This does not mean a top-level conspiracy just corrupt tendencies of individuals.
However,I have no compunction about it when I allege that Civil Court judges who fail to take strict action and call Police to clear these awful people from Court play a big part in obstructing justice and reform.
They help the LA cover-up.
Sarah,
Do you accept that when individuals forcibly ,by coercion,blackmail,false representation or any combination of such methods,take children from natural family and normal place of abode thus traumatising them and causing great emotional distress and harm all around that it is a CRIMINAL offence to be dealt with by the criminal judgment system notwithstanding whether the offender is overworked,stressed or apparently acting without malice?
It is not for the civil courts to decide ; it is everyone’s duty to report unlawful removal,child abduction etc.to the Police for proper and full ,impartial investigation.
Thanks ,
Yes. That behaviour is criminal.
However, where we disagree is the extent to which this kind of behaviour actually occurs.
You seem to think it regular. I strongly disagree.
“impartial” ?
Thanks for your question,Sam.
” impartial?” It’s to the point.It seems parents are treated differently to the LA when it comes to criminal behaviour,misleading the Court etc.
Yet that obviously does not count as lack of partiality or unfairness to the Family Court lawyers.It is for them to explain why not because I can’t.
Sarah,once again,thanks for taking the time to answer our questions.It really helps lay persons understand the system with more clarity and why it is lots of chlldren and parents have a burning sense of injustice but why it is not recognised as injustice by their lawyers.
Here is another constructive question which will help the debate.
Why ,when the LA acts unlawfully as above ,do lawyers advise parents that it will not warrant an application for leave to appeal?
I look forward to a precise answer to that specific question .
I think even the smallest misrepresentation or illegitimacy will effect the matrix to an extent which is immeasurable mathematically so an appeal on that basis should have a good chance of success.
Why do our lawyers say nay?
Erratum
Yet that does not count as lack of IMPARTIALITY or of unfairness
Paragraph 2 above
Thanks for your candour and good intentions ,Sarah, but sadly you could not be MORE WRONG about the extent of malpractice.
Recent findings of various public inquiries support my view that the unlawfulness and institutional abuse is ‘cultural’, continuous and widespread . It affects hundreds if not thousand of citizens and has been ongoing since at least the 1930’s. whether the Victorian laws were altered in the 1930’s i don’t know, perhaps you do.I am willing to bet that were published statistics correctly compiled and all child abuse counted, it will be found that the oft-quoted figures that most child-sex abuse is due to family members is totally false ideology.Most of it takes place in various institutions and committed by establishment figures , schoolteachers,politicians, clergy,scoutmasters,social workers and the like.
I agree with you it does not seem to be regular on the face of it but that is because of the additional culture of ‘cover-ups’ and even the civil courts have some explaining to do about those.Even when respondents prove evidence false, the LA’s are permitted to continue with their phoney assessments. Surely, we cannot expect them to submit an assessment which admits they acted unlawfully,traumatised the child/ children and abused the family’s human rights for no reason.WE WOULD BE DAFT IF WE DID.
No, they bend,twist and alter reports and databases to clear themselves and evade accountability.
Sarah,did you miss my question about appeals if LA’s act unlawfully and present false evidence to a court,remove children from home unlawfully etc?
As an ordinary layperson, but to use a professional phrase , I would say it is a ‘clear indicator’ of dishonesty and that when a Judge,a Guardian ,a solicitor, the Police or anyone else ignores the failures when they are proved in a court setting , the are actually guilty themselves of aiding and abetting the criminals.Of conducting a cover-up.
Lord Munby was quite clear that LA’s have to be open and candid ( honest).It is expected of parents and it is expected of LA’s in fact of everybody.
In my opinion,article 6 says hearings are to be fair and lawful .Interference must never be ordered unless they are.
David Cameron’s staff ( including lawyers) advised parents that the only remedy when cases are conducted incorrectly is an appeal to a higher court; that was an official letter to an MP which informs much of my opinion. It came from the very top.
However,it has become apparent on this thread that CP lawyers have different standards. So please answer the precise question.Why do our lawyers not recommend an appeal?
Then we can move on with the discussion from there.
Because you could succeed on a technical issue – proceedures not properly complied with – but lose on the issue of substance i.e. child clearly was hurt or at risk of being hurt and needed protection.
Appeals cost an enormous amount of public money. I am a guardian of the public purse. It would simply be wrong and irresponsible of me to recommend appealing when I didn’t think there was a good reason and a likely prospect of success. That is why I have only appealed about 10 cases in my career.
Well,I don’t think it very fair but even if we accept that
a) criminals taking children ,traumatising them,making false representations on oath and placing them in a situation where they are at serious risk of institutional abuse is merely a technical issue
b)public justice comes second to the public purse,
Even if we were to accept that and even if we were to accept that no matter the circumstances of a case, it can ALWAYS be argued there is some element of risk,surely it becomes a matter of proportionality.Liquidation should never be ordered unless procedures are properly complied with.Thus a less invasive care-plan is called for and the child returned to parents with protective order in place.
The reason for appeal ,in parent’s eyes,would be to ‘ rescue’ children from institutional abuse.
This does not mean I do not understand how difficult it must be for barristers to strike a balance .You have to use your discretion as the Judge can and we all know the Judge’s discretion is wide.
If you cannot appeal then should you contest the risk issues ( especially potential abuse in care) and the proportionality of the care-plan more strongly in the lower court?
Or isn’t there enough time?
It seems more clear now that the judiciary is to blame for brushing dishonesty under the carpet and letting the LA’s get away with it.
Please remember,readers,there is always an element of risk.
A care order ,therefore,can always be justified but family liquidation is a different.
If the civil courts entertain such abysmally ,low standards and if funds don’t permit appeals why can’t we just put a limit on its powers.That is the only way to control the system.
Good luck to all those attending CPR conf2018.
I think sincerity is called for from all sides and i look forward to more of it on this thread .Thank you Sarah.
As far as the judiciary is concerned, all the lawyers involved and the Judge in particular know the Law and are well aware of what the law is as regards evidence by virtue of their office.
Yet the truth is that in many cases ( as discussed above) not one of them keeps the Law.
Surely,that is madness!
Some questions:-
1. Why is it that the Family Courts are so keen to grant the LA wishes , they even accept criminal,unlawful actions and known false evidence from it without qualms?
2. Why do the Courts aid and abet the LA with its illegitimate aims and sweep clear malpractices and perversion of the course of justice under the carpet?
They cover up for them even though they know full well the Law demands openness,honesty and integrity especial from child-protection professionals. In my opinion , and i hope others will accept it , we cannot continue to judge cases according to appearances ( ifs ,buts,maybes and likelihoods) based on known untrustworthy evidence. We have to learn to judge according to what is RIGHT not what is wrong and only when we start doing so can we have justice.
Please note why LA evidence is dodgy we know following years of discussion on this resource that :-
(a) CS not independent, investigations never impartial as honestly described by K.Wells.
(b) Political issues and LA policy imperatives as mentioned by H.Sparkles and Maggie Melons respectively.
(c) Due process both pre-proceedings and during hearings not followed strictly.
(d) Even when it is known evidence is false and untrue,the LA admits itself that it does not change it.It is its policy to leave false data on file in order to present it in reports and documents under oath to Court.
(e) Hearings not open to Public scrutiny.
All honest comments including disagreements welcome.
Why, despite it being apparently generally accepted by most of us ( including cp professionals themselves ) that the system is unfair , is it that no-one will do anything about it? No matter how much parents engage with solicitors and prove their cases correct and that LA’s have acted unlawfully , are biased against them etc., the lawyers are unable or unwilling to argue for them in Court.
There is a distinct lack of adequate representation for parents in court which cannot all be put down to legal funding shortages. Most of the barristers accept that the system is broken and the system is unfair but just seem unable to do anything. They have accepted it and ask us to do likewise.
This from Sarah.
QUOTE:Of course. But you also need to take on board the consequences of outward expression of anger towards professionals and in a system which is ALREADY geared towards finding you the problem. It’s not right. It’s not fair. but it IS. : UNQUOTE
She sees before her an unfair system but what can she do about it ? Not a lot apparently.
What is the point in her putting arguments in court to a Judge who has such a wide discretion and will cut her short anyway?
This is nonsense. ‘the lawyers are unable or unwilling to argue for them in Court’
on what do you base this unfair and untrue assertion?
Nor is it fair or right to say ‘no one will do anything about it’. It is very hard to do something about a problem which has its roots over such a wide field of unfairness and lack of resources. People are doing the best they can with what they have got in most cases. The solution would be to develop a society that did not make Profit its God I suspect. How we do that I don’t know. But you do not advance the necessary cause one iota by continuing to make assertions which I know to be unfair.
If I am wrong, show me the evidence. Other than simply what you say.
I base the assertion on what I read on this resource and included is what you write in reply to commenters.
Sarah, i am not saying that all lawyers don’t try to put arguments, some of them do but they are unable to argue effectively because of the protocol especially that which allows a Judge to cover up for unlawful LA’s and even though their evidence has been proved wrong ,decide at their own discretion to liquidate families anyway because their is still an element of significant risk in the care of parents.
The guidelines and safeguards ,by law, are to be in place and followed scrupulously but lawyers seem to have decided between themselves that they are mere technicalities and legal niceties to be ignored more or less at will if it is thought children remain at risk. This means the law isn’t worth the paper it is written on for the simple reason that there is always an element of risk in a child’s life whoever the parents and ALL risk is significant to parents.
In my comment dated Sept.25th ,I have given five reasons (a) to (e) for unfairness which it seems barristers are unable to argue effectively nor can they appeal because the system is broken.
I can only deduce (Watson) that it is impossible for them to argue against Judges who are given so much discretion. For that reason, I believe limits should be put on civil Family Courts and they should not be permitted to liquidate families. Have you considered my thoughts about this?
For example, we have all read the judgment where the LA acted unlawfully in more ways than one, changed evidence ,failed to disclose etc.etc. The Council made admissions and moved the culprits on ( one was promoted).However the Judge decided to liquidate the family anyway on the grounds that the Father was uncooperative with the LA and was ‘ unlikely’ to work appropriately with the new social work team. I think all readers will agree that because Dad was felt to be uncooperative ,that certainly would not be dire enough circumstances to justify permanent removal. Had the Judge obeyed the Law himself and done his duty ,he would have immediately reported the LA’s criminal actions to the Police for full investigation and the referral of criminal charges ( they are not protected by section 98), sent the children home to their parents immediately, ordered the LA to present the Father and mother with a full and comprehensive ,sincere, written apology ,ordered the LA to pay a sum of money to the child/children involved and the parents as compensation and to appoint a completely new social work team of the family’s choice.
I feel both Father and Mother would then be able to work with the authorities. Readers, when families have their civil rights taken away and their human rights contravened , they are not ANGRY. it is only natural and right that they are contemptuous and defensive towards the perpetrators especially when their children have been traumatised and/or abused. Barristers could argue they are not angry but as Sarah says ,the system is unfair ,it just is and the Judge can just decide for himself anyway. So they don’t bother pressing the point too much.
Sarah, statistics told those at the conference that removal for ‘ future risk of significant harm’ has multiplied recently and the figures showed that the geographical area is a big factor. I notice you have mentioned this on the twitter links above. I suggest that the overriding factor is the Judge involved .It may be misleading to put it down to the area except in so much as the Judge usually operates in a certain court. For example, Wildbloode HJ operates in the Bristol area.
It is my opinion that some of these Judges stretch their discretion beyond reason but there is little barristers can do about it .They act irrationally because they are affected by the excess of power granted to them. They ( and many LA management ) are little better that mutants . By that I mean they are not as we are or as you are. They have mutated into something else by the power given to them and they may actually get some sort of warped pleasure out of abusing children and their rights. We have a culture of institutional abuse.
I say that those in Public Office who cover-up for criminals and sweep malpractices under the carpet are themselves guilty of betraying the Public Trust. They are themselves a danger to the citizens they are meant to be serving .They betray their office and their duty and should be punished accordingly for treachery. Please can you confirm whether ,in this country, the death sentence can still be passed for such an offence. I know it can no longer be used for murder but I think we should use it for SW managers ,SW’s etc. found guilty at Crown Court for betrayal of Public Office.
I understand readers might think such a punishment too heavy but I disagree. The damage they do deserves the highest penalty ( especially in cases of perjury). Then they might stop acting unlawfully and the Judges would stop covering up for them.
All comments welcome. I hope readers don’t consider this nonsense ,we have to reform this system.The talking has to stop and action begin.Hope this helps.
The guidelines and safeguards ,by law, are to be in place and followed scrupulously but lawyers seem to have decided between themselves that they are mere technicalities and legal niceties to be ignored more or less at will if it is thought children remain at risk. This means the law isn’t worth the paper it is written on for the simple reason that there is always an element of risk in a child’s life whoever the parents and ALL risk is significant to parents.
I think there is some fundamental misunderstanding going on here. the Lawyers cannot and do not ignore the law. The problem is, is that THE LAW ITSELF gives judges a very wide discretion and a focus on what is in the child’s best interests. Insisting that failure to adhere to technical aspects of procedural law should disable a judge from making decisions about a child’s welfare, is not an argument that can succeed I am afraid.
Yes,they DO ignore the law when they allow the authorities to persecute innocent children,take them from home unlawfully and traumatise ,abuse them etc.Rather than report criminal behaviour to the Police for intervention and rescue the children from abuse,they cover up for the LA’s.If parents complain to their solicitors,to the Police directly,to the director of social services,to the IRO or even higher up to an archbishop,they are ignored and the cover-up continues.
It is the clear duty of the Judge to rescue families from institutional abuse of all kinds particularly helpless children.
Yes ,I agree your second paragraph.That is more or less what I wrote.Lawyers are unable to argue against clear unfairness because the court grants an EXCESS of discretion to the Judges in civil courts.They can overrule correct guidelines and process at will.
They could not get away with it in an open court and neither would a crown-court jury countenance such disregard to procedures.
The system is out of control and we should focus on limiting the excess powers of the family courts.
It’s not the ‘court’ that grants discretion. IT IS THE LAW
that is why complaining to an Archbishop will get you no where. they cannot interfere in a legitimate court process.
If you don’t like THE LAW campaign to change it, don’t accuse lawyers of not applying it.
The law grants discretion but the judges are expected to apply it fairly . It is the task of the lawyers to argue for parents in a way which compels him or her to do so.
I think i am correct to say that when judges arrive at the stage in proceedings where they assess the relative credibility of the LA evidence as against that of the parents, they are compelled to give reasons in their judgment why it is they ‘prefer’ one set of evidence to the other.So,for example, if they prefer the evidence of an LA which has removed a child unlawfully,willfully given false evidence under oath etc. and failed to follow correct process and conduct a case correctly we might rationally expect them to apply their discretion accordingly, report criminal malpractice to the Police and give the benefit of the doubt to the respondents.I suggest you check out a few judgments.
Many times Judges apply their discretion irrationally!
Sarah,in your 20 years in the business, have you never seen a case where ,in your opinion, the judge has applied too much discretion in favour of the LA? I imagine you have seen several.
The strange thing is, they never fail to find and quote the slightest inconsistency in a parent’s evidence in order to condemn all their evidence as doubtful. They aren’t slow to find fault in parents.
As regards the LAW ,again i insist that it stipulates in no uncertain terms that the LA must be open and honest. If it is dishonest as described above and if it does not follow working -together frameworks and legal process scrupulously, that means the acid test for proportionality is not met . Under those circumstances removal should never be ordered. THE LAW says not.
I don’t want the law changing ; i just want it to be followed and i want justice.
The Judiciary must hand more strict directions along those lines down to frontline practitioners and correct the protocol accordingly.
As far as complaining to the archbishop,the Police or the Judge when the LA abuses a child’s human rights is concerned, we expect them to take action not aid and abet the perpetrators. Especially when such malpractice is exposed in the Family Court, it is the Judge’s duty to take action.
Anyway, thanks for an interesting discussion.
QUOTE: 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 : UNQUOTE
It is concerning that experienced lawyers find section 98 difficult to understand fully . We are used to the law being complicated and hard to pin-down so it should not surprise us but in this particular aspect of the law, that they find it difficult supports my own opinion that the lawyers do not fully understand the law on proportionality most of the time and when it is not proportional to order family liquidation plans. The solicitors i have had appear convinced that if it can be shown threshold criteria for a care-order are met, then threshold for family liquidation is also automatically met.
Do they find proportionality difficult to understand? Or ,more critically, do the LA management take advantage ? Are the barristers allowed to argue against removal when threshold are met? Sarah has said somewhere else that when a care-order is issued, it needs a senior LA manager to sign off a home support plan. So is it up to the senior manager or the Judge?
Regarding section 98 and proportionality, readers may be interested in my opinion. I find it simple to understand and misunderstanding by professionals is one reason why i have , in previous comments, referred to cp proceedings as a confidence trick.
1. Normally when Family Court proceedings are taken it has already become apparent that the Police either will not investigate the facts fully or if they have, they have no interest in bringing criminal charges against parents. The only time they should be interested in admissions made by parents in the family court is when they have already brought charges in the criminal court and the relevant admission proves that the parent has committed perjury in those proceedings. It is understood by parents that cooperating suitably with the inferior court will not be used against them by police except where they have committed perjury.
2. No charges are brought against them in the Family Court. The parents are advised by their lawyers to be open and honest ,to admit to any problems and that the proceedings are being undertaken for the good of the family and to protect children from the possibility of significant harm as meant by the Children’s Act. They are told that decisions regarding their children will be taken following fair and impartial investigations etc. and that the case will be conducted professionally and fairly also that any decisions taken will be proportionate. Consequently to that assumption, parents cooperate. The promise of fairness and proportionality leads them to believe that , as there are no facts proportionate to criminal charges, circumstances can never be so dire that the CIVIL Family Court will impose a ‘punishment’ upon a child far in excess of any which the criminal court would order.Indeed, if readers check out the ECHR convention and look into the hidden provisions of it, they will see clearly that it is expected that no Family Court should sanction more severe courses of action than a higher court. Do professionals understand that?
3. When criminal charges are brought against a parent, the upper court is trained to make proportionate decisions and as part of that, it is recognised that the priority is the paramount interests of children felt to be at risk.Decisions always have safety in mind. The first instinct of a criminal court is proportionality. If an offender comes clean,pleads guilty and promises never to offend again and does so with apparent sincerity then he or she will be dealt with accordingly. The aim is to protect the child involved and no way will the court liquidate a family unless the circumstances are very, very dire AND both PARENTS ARE GUILTY.
The case of Fred and Rose West meant life imprisonment for both of them and that inevitably meant the children had to enter care.But in cases where reform is possible , even if a prison sentence called – for ,the children should not be permanently removed . Removal from natural family is far too traumatic and not in any child’s paramount interest .Plus the danger is more acute in care.
4. The same should apply in the inferior Family Court arena. Especially when parents cooperate, accept the jurisdiction of the Court and honestly admit to faults acknowledging decisions will be in the paramount interest of the children’s welfare above their own, they deserve and expect a fair hearing. Even when the LA act openly and honestly, conduct in-depth investigations and enable the Court to make fair appraisals and it is found on the b of p their children are at risk, they deserve and expect they shall be given a clean slate with monitoring if necessary. Humanity means forgiveness . The best way to ensure a man stops bashing his wife,for example, or to stop parents shouting indoors is to convince them they are wrong, get them to own up to it and make them resolve to change.Forgiveness ,encouragement and another chance !
5. When parents attend proceedings,cooperate and accept decisions of the Court, it is thoroughly unfair and inhumane to permanently liquidate a family claiming they are unlikely to work with a care-order.
I don’t think all the Judges and other professionals understand proportionality AT ALL.
Or the deliberately ignore it because of the political policy imperatives. Respondent lawyers, please swot up on section 98 and get with it.
No reply so how you took to my suggestion that many professionals misunderstand proportionality , who knows?
On the same subject though,Sarah, three questions for you.
1. Have you ever seen a case (s) where you think a more proportionate ,less harsh decision might have been taken had it been subject to a twelve-man jury ( in the tradition of British justice) rather than to the discretion of a judge? Do you think your arguments would have swayed the case if heard by peers of the respondents
2. Have you ever been concerned that a decision might have been more proportionate had there not been a shortage of time ? I am thinking of when Judges warn barristers to cut short submissions due to his or her time schedules, or when they cut procedural corners in other ways due to the dearth of court time which demands summary justice.
3. As the law already demands fair hearings in child-protection cases, could the President and his colleagues on the Family Division alter the court protocol to provide them ; perhaps by introducing juries and doing away with the possible bias attached to a judge’s discretion or would it need a change in the law? Same question for the protocol regarding transparency.
I am afraid I think that if a jury was involved that many more harsh decisions would be made against parents. Mistreatment of children is an emotional topic for many.
I am sure shortage of time is responsible for very many bad decisions and mistakes. This is across the board for the whole proceedings. Not just in court.
There is simply no money for any suggestion of jury trials in CP matters. We can barely sustain the criminal justice system. And after Brexit things are going to get worse.
Naturally the residing judge and officials would explain fully to all members of the jury that child-protection cases are not about ‘punishing’ parents or the children named in each case and how essential it will be that they do not allow their emotions to direct their decisions unduly. Judgment to be made ONLY in the paramount welfare interests of children and to comply with common humanity in accordance with the law. The respondent’s barrister will be granted the time to warn the members of the jury ( in the interests of the children) if cases have not been conducted correctly and/or if there has been any unlawful actions by the authorities and explain to them how and why official appraisals and evidence cannot be relied on fully etc.etc. in those circumstances. They will also read out in Court the full contents of articles 6 and 8 and give the jury a full understanding of proportionality.
Sarah, thank you very much for your reply.I understand you are very busy right now especially with the case involving Louise Tickle, the journalist.
Unfortunately, i cannot avoid thinking that i have been right in the main all along regarding the judiciary failing . Our civil and human rights depend on the law so if the judicial system is broken ,as ours is, then criminality by citizens and institutions, the abuse of power by authorities and public officials, profiteering at the expense of the vulnerable and so on is bound to proliferate. Because the perpetrators can get away with it. This is pretty basic but its does not mean top level conspiracy and particularly it does not mean lawyers are corrupt or bent, it is simply that life conspires to be that way.We are all human and this is why we have to RELY on the legal system to protect us all not only from individual lawbreakers but also systemic excesses.
Unfortunately , according to me and many lawyers, our judicial system is broken and justice is no longer being sustained. If the law cannot be upheld then are we any better than one of those countries where inhumanity is commonplace?
Domestic violence,illegal drug trading , rape and sexual abuse goes unpunished because the Police and judiciary do nothing. Likewise institutional abuse is covered up as is official lawbreaking and abuse of procedure. Of course, like in Russia and China ,we have ‘secret’ courts to keep it under the radar. I admire the transparency project and the criminal barristers who protested recently about the breakdown and i can only praise you for giving us the truth.
So ,what can be done? You seem to recognise that there is not enough money to maintain the system so we should examine judicial finances and study its ledgers and account books . Are millions being syphoned off to private industry as is common in public affairs? I did read somewhere a suggestion that massive amounts are being WASTED on computer equipment and software which does not work or is now obsolete. These are just suggestions to be considered. Are those employed by the legal authorities,CPS spending 80% of their time at computer consoles ( like the social workers) playing silly games and carrying out useless research?
The system must take a close look at itself and put things right for the sake of our country.What is the annual budget and how is it spent?
Finally , i think i am correct to say that it is the Home Office which is ultimately responsible for
the Police and the Judiciary . Unfortunately , it makes no difference who we vote for. So Justice depends entirely on our lawyers,Attorney Generals, law lords, Q.C’s, barristers etc to force the politicians to restore it. The Family Division might consider joining or copying the criminal barristers in making a big stink about it. One way to protest would be to refuse to issue any orders unless fair hearings are financed properly.
All comments welcome etc.
Who on earth thought it was a great idea to encourage openness and honesty in a court by not making people accountable for what they say? It’s pure madness! It encourages them to lie more because hey why not? And when others are going to prison for the same crimes, these family court attendees are strutting off among the public sneering at our ridiculous legal system.
Next they’ll try to encourage murderers to be open and honest by not holding them accountable either!
In a family court it should be absolutely strict! No lies accepted. No crimes tolerated. Treated with absolute seriousness and professionalism. The only leniency should be towards misunderstandings, genuine mistakes, personality differences and the like. Crimes, abuse, contempt of court, etc…Do we want those things brushed aside to supposedly encourage honesty. Honesty in a court is not a choice! It is THE standard and must be enforced not weakened. In one family court case alone I know of, the father was found to have raped his wife more than once causing pregnancy against her wishes. He tore out her stitches after she gave birth, bit her, threatened to take her baby away from her, molested a minor, left the baby soaking in wee, sick and sweat one evening when the mother was invited out for a couple of hours for once, he lied in court about paying maintenance and about the contact he had had. And so on. All proven. There was a lot. An 8 day finding of facts. He started the court case along with his parents who also were found to be pretty nasty. They represented themselves. Although they were found not to be safe to have direct contact they walked from that court and not one thing was done to hold them accountable for the numerous crimes that others had gone to prison for. They shocked a court full of professionals. And they walked away without even having to pay court costs.
It’s time someone altered that gross mistake and made the family court a serious place of law and accountability.