Children Act 1989, section 98

Self-incrimination

Part XII Miscellaneous and General

(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 [F989or civil partnerF989] 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 [F989or civil partnerF989] in proceedings for an offence other than perjury.

Definitions used in section 98 2

the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act

Cases considering section 98 30

Re P (Children) (Disclosure)

[2022] EWCA Civ 495 · 12 April 2022Limits

In Part IV or V proceedings, the provision removes the privilege against self-incrimination and replaces it with limited protection against evidential use in criminal proceedings. It does not prohibit investigative use or disclosure. A court cannot extend equivalent or greater protection to private law proceedings by judicial legislation. (see paras [5]–[9]; [37]–[38]) The subsection makes statements or admissions compelled in qualifying proceedings inadmissible against their maker or spouse or civil partner in criminal proceedings other than for perjury. It supplies no guarantee of confidentiality and does not bar police investigation. (see paras [5]–[6]; [17]; [37]; [42])

T and J (Children)

[2020] EWCA Civ 1344 · 20 October 2020Limits

The court confirmed that a person in care proceedings cannot refuse to give evidence or answer questions on the ground of possible self-incrimination. The provision did not make an adverse inference mandatory. (see paras [50]–[51]) The protection prevents a statement or admission in care proceedings from being admitted against its maker in criminal proceedings. It does not prevent use of the material in a police investigation, so criminal-law advice remained relevant to the discretionary assessment of silence. (see paras [50]–[51])

A (Children), Re

[2020] EWCA Civ 448 · 25 March 2020Limits

The section was considered as the statutory context for evidence and admissions in care proceedings where self-incrimination is raised; the decisive protection was in subsection (2). (see paras [13]; [28]; [37]-[41]) The provision formed part of the statutory context that a person giving evidence in care proceedings cannot refuse on the ground that the evidence may incriminate that person or a spouse or civil partner. (see paras [13]; [28]) The subsection prevents statements or admissions made in care proceedings being used as evidence against the maker or spouse or civil partner in criminal proceedings, but does not create a complete bar to investigative disclosure. (see paras [17]; [28]; [37]-[41])

10 more judgments, and what each says about section 98, are in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F989Words in s. 98(1)(2) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 261(1), Sch. 27 para. 132; S.I. 2005/3175, art. 2(2) (subject to arts. 2(3)-(5))

Commencement

  1. I82S. 98 wholly in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)