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Tag Archives: section 98(2) Children Act

Enjoy the (right to) silence


Another case on the right to silence, and the frustration of the family Court in having parents refuse to give evidence or file a “no comment” document on the basis of legal advice given by their representatives in criminal proceedings.

I have written about this a few times

 Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them  AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.

 Over recent years, that principle has been rather eroded, as the family Courts have become more and more amenable to requests by the police for disclosure of care proceedings AND more importantly, changes to the criminal law which allow for inconsistent previous statements to be admissible in evidence.  S 119  of the Criminal Justice Act 2003  (which never really seems to get tackled when the family courts look at this issue)

 That is a backdoor by which admissions made in care proceedings could be evidence in criminal proceedings if they are an inconsistent statement. The s98 protection may prevail, and a criminal judge rule that it overrides the later legislation which permits inconsistent statements to be adduced as evidence, but it may not. When your client might be looking at an eight year prison sentence, that’s not a risk you want to be taking.

 As a lawyer, it is part of your job, if a client says “Is there any risk in my doing this?” to advise them whether there is or not, including whether it is a grey area.  [It is not necessarily a question of telling them NOT to give a statement in care proceedings, but you have to advise them that doing so involves a risk to them.  HOWEVER, note this judgment, which now makes it plain that it is a contempt of court for a lawyer to tell a parent not to make a full and frank account in their evidence in the family Court, even if that lawyer’s job is to defend them in the criminal court]

 That means that if a parent in care proceedings gives an honest account of what went on, as they are encouraged to do and on the basis of the s98 protection, it may come back to haunt them in criminal proceedings and they are unwittingly potentially waiving their right to silence.

 It is little surprise then that where the issues in question relate to serious criminal offences where a significant custodial sentence might await a parent if convicted, that those representing the parent in criminal proceedings are keen for them not to incriminate themselves.

 One of the other problems is that there are relatively few lawyers who are utterly at ease with both the criminal justice system and the family justice system – so criminal lawyers are nervous and wary about anything that goes into the family court, and family lawyers aren’t going to tell their client to go against the advice they’ve been given by their criminal lawyers.

 The family Courts have been less keen on the parent taking that legal advice, rebuffing the argument in various appeals and also last year committing a man to prison for failing to give evidence in a family court on legal advice.


[So actually, the risk is twofold – if you file the statement it is possible that the prosecution get it and use it as an inconsistent statement, and if you don’t you can be sent to prison by the family court.  If you are thinking that it seems unfair that you might get sent to prison for trying to exercise your right to silence because the framers of legislation left a grey area, then I agree with you]

The family Courts have AGAIN had a crack at this thorny issue, which is not going away, and will not go away until either a very senior criminal court or  family Court address once and for all whether s98 genuinely does offer protection against prosecution for anything other than perjury.

 Part of the problem here is that we have two statutes in conflict with one another – it is all very well for the family courts to think that s98 Children Act 1989 beats s119 Criminal Justice Act 2003, but it ain’t necessarily so.


A Local Authority v DG and Others 2014

 Exactly this issue arose – father in care proceedings was directed to file a response to threshold, his legal advice was not to waive his right to silence and that if he was to file anything it should be very very anodyne.

 The Judge was unhappy about the whole debacle, and was  critical of the advice given to the father  although understood why it had been given.


The Court was asked to provide some guidance, which it duly did. It does not resolve the ultimate issue of whether it is safe to make admissions in care proceedings or not, but it does clarify WHEN that argument should be heard.  (Clue, if you guessed “When it is too late”, you would be right)


40.   Guidance

  1. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
  1. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:



c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 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;



f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court’s determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.



Well, that’s helpful in a way, because the Court makes it plain that the parent HAS to file a statement, HAS to comply with the orders of the family Court, HAS to do so on time (even where this means that they are filing a statement that might later be contradicted by their defence statement)  and that the TIME to argue about whether or not the statement might prejudice their right to silence is when the police ASK for it and not before.


At least there is a clear process and procedure now. But it still puts the parent and their legal team out on a limb – this is “Tell us everything now, and we’ll decide later whether it will be shared with the police”


This isn’t an easy situation, and I have sympathy for all involved, including the Courts. For me, it is a real shame that when this issue got up to the Court of Appeal, the Court of Appeal didn’t just grasp it and make it plain that s98 stands, exactly as written, and that nothing a parent says in evidence in a family Court can be used against them in a criminal court, other than in a prosecution for perjury.


Is there a meaningful right to silence in care cases?

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.


The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)


Children Act 1989, section 98(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



on the ground that doing so might incriminate him or his spouse 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.




So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]


There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”


The Court of Appeal clarified this in Re Y and K (Children) 2003


35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.



And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.



As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.


That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.


They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.


Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.


But how true is that, in reality?  



There were a swathe of cases in the mid 1990’s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).


So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)



The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161




But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.



In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.


The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)



In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place. 



Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement


“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”


Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”



I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.


For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.


I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.


 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]



Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 


I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 


That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.