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There are two legal authorities from America that most people have heard of – Roe v Wade which legalised abortion and Miranda-Escobedo which set out that you have to read a suspect their rights. Most of us can make a pretty good effort at the Miranda warning, based from a lifetime of watching movies (although in reality snarling it at the ‘perp’ whilst roughly handcuffing them behind their back is not mandatory).
Recently, the High Court was invited to adopt a ‘reading them their rights’ policy before a witness gave evidence in care proceedings.
Re X and Y (Disclosure of Judgment to Police)  EWHC 278 (Fam),  2 FLR (forthcoming and reported at July  Fam Law 961)
This related to a request by the police for disclosure of transcripts of the parents evidence in care proceedings. The parents had given evidence about alleged physical injuries to the child and the judge had urged them before giving evidence to be frank.
The parents objected to the police having access to a transcript of their evidence, pointing understandably to the provisions of s 98 of the Children Act 1989:
'(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 of an offence.
(2) A statement of admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury.'
These being effectively a trade-off - a person is not given any right to silence in care proceedings and HAS to give evidence (and as we saw in Re LR (Children) 2013 can be sent to prison for 18 months for refusing to do so even though his refusal was as a result of advice from his criminal legal team), but in exchange the person has the assurance of the Act that nothing they say in care proceedings can be used against them in criminal proceedings other than for perjury.
[It is worth remembering that the s 98(2) protection even as drafted only protects the person giving evidence and their spouse – if the witness says something that would incriminate their son, daughter, boyfriend, or even cohabitee, that can lawfully be used in a criminal trial against that person. It is also worth noting that the protection extends to admissions made during an expert assessment within care proceedings Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police)  EWHC 2198 (Fam),  1 FLR 579 - and to a Guardian, but NOT to a social worker Re G (Social Worker Disclosure)  1 FLR 276.
The last bit alone is good reason to want Parliament to redraft the provision - particularly in our new climate where social workers are the professionals conducting the parenting and risk assessment – how can a parent be open and honest during that process without that protection?]
That starts to become something of an unbalanced trade-off when one has the police asking for transcripts of what the parent said in their evidence, and routinely getting it.
The police, after all, are not asking for this material just because they are individuals possessed with an inquisitive nature and an enduring deep and vivid curiosity about the world. They want it because they want to use it. And they want to use it by either putting it to a parent in interview, or getting it in before the criminal court.
The reported cases invariably end with the police being given the material that they seek – using Re EC as the template for doing so.
Re EC (Disclosure of Material)  Fam 76,  2 FLR 725
Re EC sets out ten points for the Court to consider when making decisions about disclosure of material held by the family Courts to the police.
(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 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 s98(2) applies. The underlying purpose of s98 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.Article continues below...
The Red Book is the acknowledged authority on practice and procedure
(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, school, 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.
Those points correctly identify the tension between promoting openness in witnesses in care proceedings and the public interest in prosecuting crime, and the thrust of the ten points are broadly that with the bulwark of s 98(2) to protect the witnesses rights in any subsequent criminal trial, it is right to share the information (in essence doing so on the basis that what is being given is more of the nature of ‘intelligence’ than ‘evidence’)
But if s 98(2) is not really that bulwark and the provision of material to the police is potentially admissible evidence in crime, don’t those ten factors need to be revisited and the balancing act recalibrated? Should the starting point not be to preserve the intention of s 98 by NOT disclosing unless there are compelling and exceptional reasons to provide the disclosure?
The risk to the protection of s 98(2) to this, as the Family Courts keep being told and keep sidestepping, is the provision of s 119 of the Criminal Justice Act 2003 (the 2003 Act), which makes admissible in evidence a previously inconsistent statement.
If a father is suspected of fracturing a child’s leg and gives a no comment interview to the police (as is his legal right) but is then compelled to give evidence in care proceedings and says anything at all, then that is potentially a previously inconsistent statement and is potentially admissible in the criminal proceedings.
Would the criminal court rule it inadmissible because of s98(2), or rule it admissible because of s 119 of the 2003 Act? One can’t be sure, but if I were representing a parent in these circumstances, I’d have more confidence that the Judge was familiar with the criminal statute than the family one.
There is at best, doubt about this at present. The family judiciary seem to view it as a merely theoretical risk which will never materialise, the bar take a more cautious approach.
Hence the High Court being asked to endorse the view that prior to giving evidence in care proceedings a witness ought to be given the following warning by the Judge after inviting the witness to be frank:
'you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.'
Baker J declined to endorse that view and ruled that the failure to give such a warning was not a breach of the parents’ Art 6 right to a fair trial.
We may not have seen the end of this, however (and Strasbourg might take quite a different view), and it might be sensible that lawyers representing parents give that sort of warning to their clients before evidence is given. The question also arises as to whether there might be a move towards admissions being made in the (unsigned) response to threshold or position statements, which might escape the clutches of s 119 rather than in statements in oral evidence or in conversation with professionals, which would not.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.