Re P (Children) (Disclosure)

A party to private law children proceedings retains the privilege against self-incrimination but has no right under article 6 to make incriminating admissions with immunity from disclosure or subsequent criminal use. The privilege permits refusal to answer particular incriminating questions. It does not permit complete disengagement from the proceedings.

The Family Court should not make a prospective blanket order preventing disclosure of hypothetical admissions. Disclosure requires a fact-sensitive evaluation under the established Re C factors, without any presumption for or against disclosure. A civil court cannot determine whether evidence will be admissible in a later criminal trial. The criminal court provides the ultimate safeguards against unfair admission.

The father sought contact with two children after findings in private law proceedings that he had committed serious abuse, including rape. The mother sought removal of his parental responsibility. Fearing that engagement with Cafcass or the court might incriminate him, the father applied prospectively for an order preventing disclosure of any statements or admissions to the police or prosecution authorities.

Hayden J refused that application in [2021] EWHC 3133 (Fam). He considered it premature to decide disclosure without knowing the material concerned and inappropriate to create protection wider than that enacted for public law proceedings by section 98 of the Children Act 1989.

The central issues were whether fairness under article 6, the children’s welfare or the need for frankness required advance immunity, and whether the Family Court could create protection equivalent to section 98.

1. Appeal dismissed. The application was untenable in both timing and scope. A court should not fetter its future discretion by prohibiting disclosure of hypothetical admissions whose seriousness, relevance and surrounding circumstances remain unknown. Such an order would pre-empt the evaluative balancing required by Re C and give some interests automatic priority over others ([31]–[32], [43]).

2. The privilege against self-incrimination permits a party to refuse particular questions tending to incriminate him. It extends to incriminating questions from Cafcass where the answers would be admissible in the family proceedings and to incriminating statements in written evidence. It does not entitle a party or witness to refuse all engagement. By applying for contact, the father had assumed an evidential burden while retaining the privilege ([33]).

3. Article 6 does not confer a privilege to make admissions of criminality while enjoying absolute protection against their disclosure, evidential use or investigative use. No clear and constant Strasbourg jurisprudence supported such a right. Domestic courts could not establish that new Convention principle. The ordinary disclosure process, applying the Re C factors to the particular material, adequately protected the fairness of the family proceedings ([34]–[42]).

4. Section 98 of the Children Act 1989 removes the privilege in Part IV and V proceedings but makes resulting statements or admissions inadmissible against their maker in criminal proceedings, apart from perjury. It does not prevent disclosure for criminal investigation. The father sought greater protection while retaining his privilege. The distinction drawn by Parliament between public and private law proceedings could not be removed judicially ([5]–[9], [37]–[38]).

5. The Family Court cannot decide whether material will be admissible in a criminal trial. That is for the criminal court under the applicable statutory scheme. In particular, section 78 of the Police and Criminal Evidence Act 1984 permits exclusion where admission would adversely affect trial fairness. These safeguards answer any article 6 concern arising from possible criminal use ([22]–[27], [35], [37]).

6. There is no presumption favouring disclosure from children proceedings. The Re C factors are non-exhaustive, have no predetermined weight and require the court to decide which public interest prevails on the particular facts. Although frankness may receive greater weight in private law proceedings, that does not follow inevitably. The gravity of serious crime and the public interest in prosecution may be compelling ([17]–[21], [41]–[42]).

1. Court of Appeal (Civil Division): The father’s appeal was dismissed. The court upheld the refusal to grant prospective blanket protection against disclosure: [2022] EWCA Civ 495.

2. High Court of Justice: Hayden J refused the father’s application because it was premature and sought protection which the court could not fashion by analogy with section 98 of the Children Act 1989: [2021] EWHC 3133 (Fam).