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P (Children)(Disclosure) [2022] EWCA Civ 495

Appeal by a father in private law proceedings who had serious findings (including rape of the mother) made against him. Hayden J rejected his application for protection from the possibility of any admissions or incriminating evidence being used in criminal proceedings. The Court of Appeal (Lord Burnett of Maldon CJ, Lord Justice Peter Jackson and Lord Justice Baker) dismissed the appeal.

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The Court of Appeal was concerned with an appeal by a father in private law proceedings. Hayden J had made findings of serious criminality against the father, including rape of the mother [[2021] EWFC 4]. Further hearings remain in respect of the father's application for contact and the mother's application to remove his parental responsibility.

After the findings, the father had advanced an argument before Hayden J that although he has the right not to incriminate himself in the further proceedings, he may have to do so, if he is to persuade a court to order contact. He sought an order "that any statements or admissions made by him in the proceedings, in reference to the findings that have been made by the court, will not be disclosed to the police (or by extension, to the CPS)". He argued by removing the prospect of incriminating himself, both parents will have the opportunity for full engagement with the court process.  Hayden J had rejected this application on grounds it was pre-emptive as no incriminating statements had yet been made, and it was inappropriate to widen protection in private law proceedings beyond the protection offered in public law proceedings by section 98 Children Act 1989 [[2021] EWHC 3133 (Fam)].  

The Court of Appeal considered the privilege against self-incrimination [§7], and the principles of disclosure to third parties in family proceedings set out in Re EC (Disclosure of Material) [1996] 2 FLR 725, [§17]. The court made clear that the question of admissibility of material in a criminal trial would be for the criminal court [§22]. The judgment describes admissibility in criminal proceedings and the way in which material is treated when coming from family proceedings including the provisions in the Criminal Justice Act 2003 and Police and Criminal Evidence Act 1984, which contains at s 78 the "ultimate safeguard" against evidence being admitted which would, by its admission, render a trial unfair in article 6 terms.

In effect, the father's contention was "that article 6 of the Convention confers a right on a party to family proceedings to admit to having committed any criminal offence without the possibility that the admission might be used either (a) as evidence in criminal proceedings, or (b) as a springboard for investigation. That right, he submits, prohibits the court from disclosing self-incriminating material to the prosecuting authorities" [34]

The court did not accept father's contention he could only take part fairly and in an article 6 compatible way if he was immunised from the possibility of the use in criminal proceedings of admissions or incriminating evidence, with reference to s.1 Children Act 1989 and overriding objective FPR 2010). If true, it would mean s 98 Children Act 1989 is also incompatible with article 6 of the Convention. The Court did not accept that article 6 confers such wide-ranging protection on a private law family litigant [§39], and no supporting authority was provided.

Furthermore, it would be "contrary to the sound administration of justice…risks undermining aspects of the rule of law and giving no weight to the public interest in the conviction of those guilty of serious criminality". The Court concluded there is "nothing unfair" in expecting the father to make his case, and that the existing protections would ensure that the family law proceedings would be, in that respect, fair [§42]. The appeal was dismissed.

Case summary by Sarah Tyler, Barrister, Coram Chambers

For full case, please see BAILII