P (Children)(Disclosure)
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 12 April 2022 |
| Neutral Citation | [2022] EWCA Civ 495 |
| Docket Number | Case No: CA-2021-003245 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 495
THE Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lord Justice Peter Jackson
and
Lord Justice Baker
Case No: CA-2021-003245
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Hayden
ZE17P01593/BT17F00201
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Momtaz QC and Annabel Barrons (instructed by Dawson Cornwell) for the Appellant
Father Allison Munroe QC and Maggie Jones (instructed by Duncan Lewis & Co. Solicitors) for the Respondent
Mother Tom Little QC (instructed by the Crown Prosecution Service) for the Director of Public Prosecutions as Intervenor
Hearing date: 31 March 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10am on 13 April 2022
This is the judgment of the court to which we have all contributed.
The appellant father in private law family proceedings has been the subject of findings of serious criminality by Hayden J, including rape of the mother of their two children: [2021] EWFC 4. The mother and father are now in dispute about the arrangements that should be made for the children in respect of which there will be further hearings. She seeks an order that he should be deprived of parental responsibility; he seeks an order for contact.
The father has the right not to incriminate himself in the further family proceedings but suggests that he may have to do so to stand any prospect of persuading a court to allow him to have contact with his children. In advance of the substantive hearing on the outstanding issues he applied for 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).”
The father has previously been interviewed by the police, but a decision was taken not to prosecute the father. The fact-finding judgment of Hayden J has subsequently been disclosed to the police.
The essence of the argument for the blanket advance protection sought by the father is that the proceedings determining the arrangements for the children will not be fair unless he incriminates himself and is given the protection he seeks. Mr Momtaz QC submits that otherwise “the position is neither ‘fair’, within the meaning of Article 6 ECHR and the Overriding Objective, nor is it in the best interests of the subject children within the meaning of s.1(3) Children Act 1989.”
The judge dismissed the application, first on the basis that it was premature to consider a question of disclosure to the police without knowing the content of any statement or admission in respect of which the question arose; and secondly that it was inappropriate to fashion the wide protection sought by the father by analogy with the more limited protection provided in public law family proceedings by section 98 of the Children Act 1989 (“the 1989 Act”). That provides:
“ 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 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.”
Parts IV or V of the 1989 Act respectively concern public law family proceedings and child protection measures. Parliament has thus removed for those proceedings the privilege against self-incrimination and replaced it with a restriction on the use that can be made of an incriminating statement or admission. To that extent it offers some protection but, whilst preventing the admissibility of such material in criminal proceedings, it does not otherwise preclude its use by the prosecuting authorities. Subject to orders by the Family Court preventing disclosure to the prosecuting authorities (see paras 17 to 20 below) such statements or admissions are capable of being used for the purposes of a criminal investigation. It follows that the protection being sought by the father in these private law proceedings is greater than that provided by Parliament in public law proceedings.
The privilege against self-incrimination
The privilege against self-incrimination, also referred to as the right to silence, is a common law right that emerged in the 17 th century after the abolition of the Star Chamber. It prevents a person, on pain of punishment, from being required to give evidence against himself. The privilege was restated (other than for criminal proceedings) by section 14 of the Civil Evidence Act 1968:
“ 14 Privilege against incrimination of self or spouse or civil partner
(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty—
(a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and
(b) shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the spouse or civil partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty.
(2) …
(3) In so far as any existing enactment provides (in whatever words) that in any proceedings other than criminal proceedings a person shall not be excused from answering any question or giving any evidence on the ground that to do so may incriminate that person, that enactment shall be construed as providing also that in such proceedings a person shall not be excused from answering any question or giving any evidence on the ground that to do so may incriminate the husband or wife of that person.”
4 – (5)…”
The privilege against self-incrimination may be overborne only by Parliament: Rank Film Distributors Ltd. v. Video Information Centre [1982] AC 380 per Lord Wilberforce at 443A. Section 98 of the 1989 Act is an example but there are many more. Article 6 of the European Convention on Human Rights (“the Convention”) has also been construed by the Strasbourg Court as guaranteeing the privilege against self-incrimination in some circumstances. The Strasbourg jurisprudence in this area is not free from difficulty but was synthesised by Lord Reed PSC in Volaw Trust and Corporate Services Ltd. v. Comptroller of Taxes (Jersey) [2019] UKPC 29; [2019] STC 2016, a case concerning the compulsory production of incriminating documents.
It is no part of his appeal that the father should be deprived by judicial decision of his privilege against self-incrimination, as would be the case pursuant to statute were these proceedings governed by Part IV or Part V of the 1989 Act. His aim is to preserve his privilege and to rely upon it if he chooses, by refusing to answer questions in court or to engage in the pre-hearing processes. But, in addition, he seeks to fashion a further blanket protection including but going beyond those provided by section 98 of the 1989 Act if he chooses to answer questions.
The facts and history of proceedings in more detail
The parents separated in 2017, when the mother was expecting their younger child. The father has not seen the older child since then and has never met the younger child. At the time of the separation, the mother went to the police, making serious allegations about the father's behaviour towards her, but no prosecution followed. The father applied for contact and the mother made the same allegations in response. The father then entered a second relationship in which it was alleged that he had behaved in a strikingly similar way. The mother successfully appealed an order that evidence relating to the second relationship should not be admitted: [2020] EWCA Civ 1088. Hayden J then conducted a fact-finding hearing, leading to a judgment given in January 2021. He found that during the four years of the parents' relationship the mother had been subjected to a brutalising, dehumanising regime, and that the father had behaved in a similar way in his second relationship. Among his findings was that the father had raped the mother. He described the father as a young man who is profoundly dangerous to vulnerable women and to children. The judgment was disclosed to the police as permitted by the Family Procedure Rules 2010 PD12G 2.1.
The judge set a timetable for the parties to make any further applications and respond to the court's judgment, and a hearing was fixed for May 2021. The mother issued an application for the removal of the father's parental responsibility and for permission to disclose documents from the proceedings to the police in due course. In response, the father made the application to which we have referred. In the meantime, he declined to be interviewed by the Cafcass officer.
The father's application was heard on 17 November 2021 and was refused in a judgment handed down on 23 November 2021: [2021] EWHC 3133 (Fam). In granting permission to appeal Peter Jackson LJ invited the Director of Public Prosecutions to intervene in the appeal.
The judge's decision
The judge summarised the father's application as suggesting that “he is effectively prohibited from engaging with the Cafcass officer or the Court more generally, because to do so might incriminate himself and potentially expose him to prosecution.” On...
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