K (Children), Re

In family proceedings, Children Act 1989, section 98 removes a witness’s privilege against self-incrimination. The witness must answer questions, subject to limits on later use of the answers in a criminal prosecution. Where a parent’s legally advised refusal to answer central questions may have affected welfare and risk findings, the absence of the statutory warning can make the issue sufficiently important to require a full appeal. Permission may be granted without expressing any view on the merits.

The father sought permission to appeal orders and a reserved judgment of HHJ Bellamy, sitting as a judge of the High Court, which reduced his contact with two children to two supervised sessions each year. The judge’s assessment relied materially on the father’s apparent failure to accept findings that he had generated evidence of stabbing and arson, together with expert risk assessments. The father had declined to answer questions about those incidents on legal advice that he could rely on privilege against self-incrimination. The central issue was whether the absence of a warning under Children Act 1989, section 98, may have affected the evaluation of his evidence and the resulting welfare decision.

Application granted. This was a permission hearing, not a determination of the merits of the proposed appeal.

1. The father challenged orders made in April and July 2012 and the final judgment of HHJ Bellamy dated 22 February 2013, which reduced contact from monthly contact to two supervised sessions each year.
2. The central issue was the father’s failure to answer questions about the stabbing and fire incidents. The judgment noted that the father had acted on advice that he could rely on a right not to incriminate himself.
3. The court stated that the applicable position in family proceedings was governed by Children Act 1989, section 98, rather than section 14 of the Civil Evidence Act 1968. Section 98 removes privilege against self-incrimination, requires answers to questions, and limits the later use of those answers in a criminal prosecution.
4. No section 98 warning had been given. The absence of a warning, the possibility of erroneous legal advice, or the trial judge’s failure to address openly the father’s understanding of the legal position might have affected the assessment of his evidence, the expert risk assessment and the welfare decision. The court expressed no concluded view on which, if any, explanation was correct.
5. Because the issue concerned a central part of the case and might have materially influenced the outcome, permission to appeal was granted so that it could be examined by a full court with all parties represented. The remaining grounds, including the submission that contact should not change without a change in circumstances, could also be pursued.

• Court of Appeal (Civil Division): On 30 July 2013, Lord Justice McFarlane granted permission to appeal. The court did not determine the merits.
• Principal Registry Family Division: HHJ Bellamy, sitting as a judge of the High Court, made orders on 20 April and 4 July 2012 concerning contact and delivered a reserved judgment on 22 February 2013 reducing contact to two supervised sessions each year.