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F v M [2021] EWHC 3133 (Fam)

Hayden J refused father’s application in private law proceedings for a prospective determination that any statement or admission he made in respect of the court’s findings would not be disclosed to the police.



In private law proceedings, Hayden J made 'serious and far reaching' findings about the coercive and controlling behaviour of F in two separate relationships.  F's behaviour was sinister and sadistic.  Hayden J found F to be profoundly dangerous, dangerous to women who he identifies as vulnerable and dangerous to children.  In respect of M, the findings included that F had raped M and had coercively controlled her by isolating her, preventing her access to ante-natal care, controlling her money and food, and deliberately curtailing her freedom, which amounted to emotional abuse.  The fact finding judgment had been sent to the police [FPR PD12G].  

The court was concerned with F's application for a child arrangements order to spend time with the children and a specific issue order to change the name of the younger child. M had applied for: a specific issue order divesting F of parental responsibility; permission to disclose documents to the police and Home Office; and disclosure of documents from F's immigration solicitor.

F had not engaged with the Cafcass officer.  He had filed a statement expressing an intention to engage with a course to promote positive relationships.  He asserted that he was effectively prohibited from engaging with the Cafcass officer or the court because to do so may incriminate him and potentially expose him to prosecution.


F invited the court to make a prospective determination that any statement or admission that he made (if any) in relation to the findings should not be disclosed to the police or the CPS. In the alternative, F sought to be afforded protection identical to that in s.98 CA 1989.   Hayden J observed he was in an 'evidential vacuum', being asked to fetter his own discretion in respect of unknown material. 

M contended that applications for disclosure should be considered at the conclusion of the welfare hearing.  F suggested this left him in an uncertain position.  As the findings against him were so serious, if the court did not grapple with this issue, the likely consequence that F would have no choice but to remain silent. F submitted this was an unreasonable interference with his Art 6 right to a fair trial.  Further, the proceedings could not operate in the best interests of the children.  

F placed emphasis on the observations of Hedley J in D v M [2003] 1 FLR 647.  Hayden J endorsed the description of frankness as 'a rich evidential jewel' but frankness cannot come at any cost [per Hedley J].  F distorted Hedley J's reasoning.

F suggested it may be an error that s.98 CA 1989 protections did not apply to private law proceedings. This was rejected: there are sound reasons for the distinction with public law proceedings.  Even so, s.98 is not an impenetrable defensive shield. It exists not for the protection of the parent but to promote the best interest of the child.  It promotes the central philosophy of the CA 1989 that, wherever possible, children should be cared for by their parents and within their families. 


Parliament has confined the ambit of s.98.  It is not open to a judge to extend the provision beyond that which Parliament intended.  The relief sought by F requires a construction of the legislation which could not be supported either within the framework of the Children Act 1989 or consistent with its central philosophy.   Application refused.

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII