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