Private Law
December 2021

04 January 2022
Protection against self-incrimination limited to public law children proceedings
F v M [2021] EWHC 3133 (Fam)

Private law proceedings in which the father had applied for a Child Arrangements Order to spend time with the children of the application and a specific issue order to change the name of the younger child. The mother had applied for a specific issue order divesting father of parental responsibility, permission to disclosure documents filed within the proceedings to the Home Office and Police and seeking disclosure of documents from father’s immigration Solicitor. Mr Justice Hayden had handed down judgement in January 2021 following a ten day fact finding hearing. He made eight serious findings against father, the findings related to behaviour of the father in two separate relationships, his behaviour in both relationships was strikingly similar, including coercive and controlling behaviour. Following the fact finding hearing it was reported by the Cafcass Officer that the father did not engage with her and she concluded that he was not accepting of the findings, did not recognise he had perpetrated domestic abuse and was not able to demonstrate any insight into the consequence of his behaviour.

The father applied to the court and argued that he was effectively prohibited from engaging with the Cafcass Officer and the court because to do so might incriminate himself and potentially expose himself to prosecution. It was argued on behalf of father that the Court should make a prospective determination that nothing should be disclosed to the police in respect of any written statements made by the father in which he makes any admissions in respect of the findings. This to be extended to include any admissions he may make in oral evidence. Although it was not known at this stage whether father would be making any admissions and as such the court was being asked to make a decision concerning material that did not exist. Mr Justice Hayden observed that he was in an evidential vacuum and being asked to fetter discretion in respect of entirely unknown material.

It was argued that if the father was not afforded the protection he sought then he would be forced to remain silent throughout the proceedings, that this would be in breach of his Article 6 rights and would prevent the court from acting within the best interests of the children.

An alternative submission was made on the father’s behalf to the effect that that the court should afford father the identical protection set out in Section 98 of the CA 1989.

In proceedings under the Children Act 1989, Parts IV and V (Care and Supervision and the Protection of Children), the legislation affords parties protection from statements or admissions made within those proceedings becoming admissible in proceedings for an offence (other than perjury):

"98 Self-incrimination.

(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 or 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."

Case law has established that protection from admissibility in evidence is not synonymous with the disclosure of such material to the police or other relevant bodies, to assist them in their investigation, most particularly where this concerns safeguarding or the welfare of children (see Re: EC (Disclosure of Material) [1996] 2 FLR 725 CA). Accordingly, statements made to an expert witness may be disclosed: Re: AB Care Proceedings: Disclosure of Medical Evidence to Police [2003] 1 FLR 579; Position Statements, filed within proceedings; statements or admissions to the Children's Guardian (see Oxfordshire County Council v P [1995] 2 ALL ER 225; Re M (Children) [2019 EWCA Civ 1364. In Re EC (supra), the Court emphasised that questions of admissibility of the disclosed documents were a matter for the Criminal Courts.

Parliament granted the protection of Section 98 to public law care proceedings but not to private law cases. Mr Justice Hayden observed that there are sound reasons for the distinction in these two very different regimes. He noted that the consequence of orders in private law may have far reaching effect on children and parents (e.g. orders inhibiting access to the court pursuant to Section 91 (14) ) and though some of the orders available might also properly be characterised as draconian, they do not carry resonances of quite the same magnitude as those within public law proceedings.

Hayden J found that, Parliament has confined the ambit of Section 98 in the way that has been discussed. This is there for judges to apply; it is not open to a judge to extend a provision beyond that which Parliament intended. That is outwith the judicial role. The relief sought by the father is, in my judgement not merely overly ambitious it requires a construction of the legislation which cannot be supported either within the framework of the Children Act 1989 or consistent with its central philosophy.The father’s application was refused.

Appeal allowed against fact finding where special measures were not put in place for vulnerable parties
M (A Child) [2021] EWHC 3225 (Fam)

An appeal following a fact finding hearing as to allegations of rape and domestic abuse in the course of private law proceedings relating to a two year old girl. Mother and father met online in 2015 when mother was working as a cam girl and father was a client. They met in person in 2016. In 2018 the mother become pregnant, the parties separated a few weeks after the baby was born. In December 2019 the mother removed the child to her home country without the father’s consent. He commenced proceedings under the Hague Convention and the Children Act, which led to an order for the mother to return the baby, which she did in February 2020. The mother then issued an application for leave to remove, and the father for child arrangements. The mother alleged domestic abuse.

A fact finding hearing was listed, there were detailed directions about the hearing and the parties attendance. The hearing took place in November over four days and was attended on a hybrid basis. There was no application for participation directions at any time during that hearing and no ground rules hearing. The parents were both represented. Judgment was handed down on 8th December. The Judge rejected the allegations of rape and sexual abuse made by the mother and found that she had made her allegations to improve her application for leave to remove. She rejected the allegation by the father that the mother had sought to control his time with the child.

Mrs Justice Judd in setting out the law stated:

  • The first and most important point in an appeal against a fact finding decision is that the function of a court sitting on appeal is distinct from the court of first instance. The task of this court is to determine whether the judgment is sustainable, nothing less.
  • Appeals brought on a matter not raised at first instance will not generally succeed, but there are exceptional cases in which the court would not apply that general principle.
  • PD12J sets out the process the court should adopt as to the determination of disputed allegations of abuse.

This case was heard before the Court of Appeal handed down judgment in the case of Re H-N and Others (Domestic Abuse: Finding of Fact hearings) [2021] EWCA Civ 448. The Court observed that the Family Court should be concerned how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not come within the definition of rape, murder, manslaughter or other serious crimes.

An important issue raised in this appeal is the treatment of vulnerable witnesses in the family court. Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A. That provision was not in force at the time of the fact finding hearing, but there were extensive provisions governing vulnerable witnesses in place which the court was bound to follow. These are set out in rule 3A and PD3AA.

Permission to appeal was given on two grounds. Ground 1 was the absence of special measures sought or implemented for the mother at the fact finding hearing and Ground 2 was whether or not the Judge balanced the evidence properly looking overall at the allegations.

Ground 1 - It did not appear from any of the orders that the question of participation directions was considered or determined by the court. The provisions of rule 3A and PD3AA are mandatory. It is not possible to know how the lack of special measures may have affected the mother. The court accepted Ms Fottrell's submission that on the facts of this case the failure to abide by the procedural rules in this case was so serious that the decision of the court cannot stand.

Ground 2 – the court acknowledged that this case demonstrates the very great challenges faced by family judges in considering allegations of domestic abuse. Patterns of behaviour, which are crucial to piece together to understand a relationship dynamic may be hard to discern. Mrs Justice Judd held that the Judge did not give sufficient consideration to the possibility that the mother might have been vulnerable in or over-dependent on the relationship. The Judge’s assessment was somewhat limited and mostly confined to comments in paragraphs 35 and 36, repeated in paragraph 45. At paragraph 82 Mrs Justice Judd states, “The reason it was so important for the judge to give very careful consideration to the question of vulnerability in this case is because a vulnerable person may not act in the same way as someone more independent or confident if they are exploited or abused in a relationship. Such an individual may be so anxious for the relationship to succeed that they accept treatment that others would not. They may be easy to exploit. They may not even realise what is happening to them, and will cling to the dream of a happy family and relationship. From my reading of the judgment I cannot see that the judge gives this possibility serious consideration…”

The appeal was allowed on both Grounds 1 and 2 and a retrial directed before a Family Division Judge.

Appeal against an order under s91(14) dismissed
Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749

The court was concerned with A who was born in 2015, her mother was a doctor from Hungary and her father was from the UK. The mother had three children from a previous relationship. In 2017 the mother went to Hungary leaving all four children with the father. In 2018 she went to Hungary again taking A with her, leaving the other three children with the father. The mother did not return and the father issued abduction proceedings to secure the return of A. The Mother did return unbeknown to the father to the UK and subsequently settled in Northern Ireland. From 2019 A lived with the father. The mother made serious allegations including sexual allegations against father.

At a finding of fact hearing in October 2019, the judge held that the mother had deliberately placed barriers in the way of the father having a natural relationship with A by taking planned and covert steps to relocate some distance from the father. Following the finding of fact hearing, a direction was given for a Dr McCartan to carry out a psychological assessment of the mother. Telephone contact was ordered to take place with A twice a week.

In January 2020, the Children’s Guardian made an urgent application to the court to suspend the telephone contact following an incident during the mother’s allocated phone call when A was questioned by a police officer from Northern Ireland about the mother’s (wholly unfounded) allegations of sexual abuse of A by the father. Supervised contact took place thereafter, but no telephone contact was allowed. By March 2020, the mother was expressing further concerns and making allegations about A’s physical and mental health and her development to her GP and Social Services. The treating and expert paediatricians found no evidence of sexual abuse or neglect of A by her father as alleged by the mother.

Dr McCartan concluded that the personality disturbance of the mother which she had identified in her report, meant that she had been exposing her children to ‘maltreatment without being aware of the impact of her behaviours and presentation on her children’. The children, Dr McCartan said, had a ‘lack of stability. Suffered a lack of respect for their education process, were exposed to conflict and did not have their needs consistently met, including their needs to have a relationship with their respective fathers.’ Dr McCartan considered that the mother was ‘highly unlikely to engage in therapeutic intervention aimed at helping her to address her personality issues’. It was Dr McCartan’s view that the mother regarded therapy as a sign of weakness and did not perceive that there was a problem.

Dr McCartan went on to express her professional opinion that the mother would derive great benefit from DBT (Dialectical Behavioural Therapy) by way of a 24-month programme which is, she said, highly useful in the treatment of emotional dysregulation. Absent therapy, Dr McCartan said, it would be likely that the mother would continue to engage in conflict with A’s father and to involve the court process. Dr McCartan was clear that contact needed to be supervised until DBT was completed ‘which in itself would provide motivation for the mother to engage in the work’. Assuming the mother engaged in and made progress in the therapy, contact could be increased, and supervision reduced.

The judge gave a lengthy and detailed judgment before confirming that A should live with her father and have professionally supervised contact with the mother for 6 hours every other weekend. The judge made an order under s91(14) prohibiting either party from making an application to the court without leave for a period of two years.

The focus of the mother’s appeal was that the order that contact is to be supervised when coupled with the making of a s91(14) order, does not allow for progression to unsupervised contact unless the mother undertakes the therapy recommended by Dr McCartan and was therefore wrong in principle.

The court confirmed that the legal principles as set out by Butler-Sloss LJ in Re P continue to be endorsed by the court. There was no error of law or principle on the part of the judge. When considering the effect of an order under s91(14) is the need to have in mind that it is only a filter. If a time comes within the next two years that credible evidence becomes available to support an application by either the father or the mother which would have the potential substantially to change the extent or form of contact, then permission to make the application will be given. In the meantime, A will have the protection from further litigation and as Butler-Sloss LJ said at p38 of Re P:

“…On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success. That is not a formidable hurdle to surmount. If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings and unwarranted investigations into the present circumstances of the child.”

The appeal was dismissed.

Sign up for our latest news and updates.