Disclosure to the Police – how safe are you to speak frankly in the Family Court?
In Re AB  1 FLR 579 Wall J stated that the extent of the protection afforded by section 98(2) is ‘not entirely clear”. That situation remains the same 12 years on.
Section 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.
Rule 12.73 of the FPR 2010 and PD 12G provide for the automatic right of any party to disclose to a police officer or a member of the CPS the text or summary of the whole or part of a judgment given in proceedings for the purpose of a criminal investigation or to enable the CPS to discharge its functions under any enactment without requiring the leave of the court. Neither the police nor the CPS can disclose the judgment or information contained therein to any person without the permission of the family court judge.
The leading authority on the question of disclosure to the police of material from the family court remains Re C sub nom Re EC  2 FLR 725 CA in which Swinton Thomas LJ set out:
‘In the light of the authorities, the following are among the matters which a judge will consider when deciding whether to order disclosure. It is impossible to place them in any order of importance, because the importance of each of the various factors will inevitably vary very much from case to case:
1. 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.
2. The welfare and interests of other children generally.
3. The maintenance of confidentiality in children’s cases.
4. The importance of encouraging frankness in children’s cases. All parties to this appeal agree that this is a very important factor and is likely to be of particular importance in a case to which s 98(2) applies. 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. Consequently, it is important in this case. However, the added incentive of guaranteed confidentiality is not given by the words of the section and cannot be given.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. Any other material disclosure which has already taken place.
Baker J in Re X &Y  1 FLR 1218 recently considered the issue of disclosure of the fact of a confession by a parent to a serious injury of a child. This confession had followed a judicial indication given in a judgment after a fact finding hearing (which left both parents in the pool of perpetrators) that if a full and frank account were given by the perpetrator, it would be possible to rehabilitate the children with their family. No section 98(2) warning was given to the Father by the Judge. The Father confessed to causing the injury 2 days later and the parents separated. The children were rehabilitated to the Mother under a supervision order and Baker J gave a further Judgment in which he re-visited his earlier findings and exonerated the Mother. The Father applied for an order preventing disclosure of any material connected to the proceedings to the police or CPS. The police had previously closed their file. A detective sergeant then applied for disclosure to the police and the CPS of any information which had come to light in the family proceedings so that a decision as to whether to prosecute could be taken. Baker J permitted the Judgments in the fact finding to be disclosed to the police and the CPS but limited their use; expressly prohibiting the contents of the Judgments being discussed with the Mother or the Father without further permission of the court and reserved further applications for disclosure to himself.
Baker J confirmed that Re EC continues to be the leading authority but noted that the relative importance of the 10 factors had changed in that the cloak of confidentiality surrounding care proceedings had been significantly lifted since Re EC was decided. Further, this case was decided before the incorporation of the European Convention for the Protection of Human rights into English law and thus a judge must go on to consider the balance between the Article 6 and Article 8 rights of the parties when deciding issues of disclosure.
At para 22, Baker J considered the question of whether such a confession could be used in the criminal proceedings and the extent of the protection afforded by section 98(2). In accordance with previous authorities, he noted that it would be for the criminal courts to decide if a statement or admission could be used as evidence within the criminal trial or whether section 98(2) provided protection. He noted that there was no reported case to his knowledge in which the interpretation of section 98(2) has been considered by the criminal courts. In the family court, he sets out that it has been recognised that although it may not be admissible in evidence (save on a court of perjury) it can be used to ‘shape the nature and range of the inquiries they undertake in the investigation of the alleged criminal offences’ per Oxfordshire CC v P  1 FLR 797. Thus the police can put the confession to a suspect in a further interview. If the suspect admits the truthfulness of the confession in that interview, that could constitute admissible evidence in the trial.
When setting out his views that “the extent and effect of protection of section 98(2) is currently being underestimated by family lawyers” in Re AB  1 FLR 579, Wall J stated that the only use in criminal proceedings that he contemplated of a confession made within family proceedings was if it were to be put to the suspect in an interview situation. If this happened, Wall J was reassured that no doubt the suspect would have a lawyer and could make no comment in interview or answer that they had relied on section 98(2) when making that statement.
In the view of Elizabeth Lawson QC sitting as a Deputy High Court judge when refusing to permit disclosure to the police, those practising share a different view to those on the Bench in relation to section 98(2) and she considered that “the Mother would undoubtedly be closely questioned in interview in a way which would nullify the protection which section 98(2) of the Children Act 1989 was intended to give her”. Re M  2 FLR 1316.
Baker J unfortunately did not answer the issue raised by Paul Storey QC in Re X & Y as to whether the confession could be put to him in the criminal trial as a previous inconsistent statement pursuant to s119 of the Criminal Justice Act 1993. Baker J said that no reported case was cited in support of this submission. However it is exactly this use of a confession that has always been the concern of family practitioners.
In Re X  1 FLR 589, Munby J at para 50 stated that ‘Putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility does not amount to using those statements ‘against’ him within the meaning of the section”. Thus this use of the confession within a criminal trial has been contemplated within the authorities and remains a real risk for the confessing parent.
The safest practice therefore is to advise clients that section 98(2) provides protection for statements made within the course of the proceedings to experts, the Guardian and the Social Worker as well as to the party’s written and oral evidence. The extent of that protection is not complete however and a parent may later be: a) questioned during an interview about the confession; and/or b) questioned during a criminal trial about the confession. They should be advised to keep quiet in any subsequent criminal interview and to pray in aid section 98(2), but whether this will afford a complete protection remains uncertain.
This is an extremely complicated explanation and if lawyers struggle with its implications, how difficult it must be for lay parties, particularly those with learning difficulties.
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.
There could be a distinction drawn between admissions of causing injuries to a child and other statements; with the former being protected entirely from use within the investigation of an offence or within the criminal trial and discretionary disclosure of other evidential statements. If the facts of the cases of disclosure are examined, it appears that such a distinction is being drawn. Confessions were not disclosed in Re M or Re P  2 FLR 1039. In each case the judges expressed concerns that the rehabilitation of the children to the family would be frustrated if there were to be further criminal proceedings. The material ordered to be disclosed in Re AB was the medical evidence and the Judgment at the causation hearing (and the Mother had not made any confessions to the expert or the Judge). In Re X the evidence sought was not evidence of confession, as the Father had pleaded guilty to the attempted murder of the social worker which was the subject of the criminal proceedings, but material which either undermined his case for a plea of diminished responsibility or was inconsistent with the case he was putting before the criminal court. Thus Re X&Y is unusual because it is a case of a confession being disclosed. However, the clear purpose of the limited form of the disclosure granted by Baker J was to enable the police to shape their investigation (ie not to pursue the Mother but to focus on the Father which would assist the children rather than harm them). The further use of the confession, even in terms of the Father or mother being interviewed about it, was not permitted. The spectre remains however that the police or CPS would make a further application for its use in this way once it had “shaped its investigation”.
If the courts are drawing a distinction in this way, it would be of enormous benefit if this were made overt. It may not appear to be a large problem in that cases are not being reported of the attempted (or successful) use of confessions obtained in family proceedings, but it is a real hindrance to the effective operation of family courts and consequently harmful to children, when family lawyers cannot advise their clients with certainty that it is safe to be frank about the causation of injuries to children within the Family Courts.
Colleton Chambers, Exeter
4th December 2015