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Reported Case

Lord Chief Justice holds a Father’s bid to obtain ‘absolute protection’ from prosecution would have ‘undermined the rule of law’ in P (Children: Disclosure) [2022] EWCA (16 June 2022)

Date: 16/06/2022
Duncan Lewis, Reported Case Solicitors, Lord Chief Justice holds a Father’s bid to obtain ‘absolute protection’ from prosecution would have ‘undermined the rule of law’ in P (Children: Disclosure) [2022] EWCA

The Court of Appeal refused a Father's application for protection from the possibility of any admissions or incriminating evidence being used in criminal proceedings, which he made or may make in private children act proceedings.

We represent the Mother in the Father’s application for contact with their two children. The Mother had made allegations to the police, once she had fled, that she was abused by the Father, but no further action was taken based on lack of evidence.

In November 2020, Hayden J heard a 10 day Fact Finding hearing, where he made serious findings, that the Mother was subjected to a brutalising, dehumanising regime of abuse, as well as rape. He described the Father as profoundly dangerous to vulnerable women and children. The full background and judgment is set out in F v M.

The aforementioned judgment was disclosed to the police as permitted in the Family Procedure Rules 2010 PD12G 2.1. Thereafter, the Mother made an application that at the conclusion of proceedings, the bundle/or papers should be provided to the police. She also applied to remove the Father’s parental responsibility. A Final Hearing was listed for November 2021. The Father declined to be interviewed by Cafcass until his application for protection was considered by the Court.


The Father’s Application

The Father applied to the Court “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 made reference to the limited protection provided in public law family proceedings by section 98 of the Children Act 1989 ("the 1989 Act"). That provision provides privilege against self-incrimination.


Privilege Against Self-incrimination

The privilege against self-incrimination, also referred to as the right to silence, essentially prevents a person from being required to give evidence against himself in respect of criminal offences.

The Father was seeing protection in these proceedings in response, as detailed above, to the Mother seeking permission to disclose documents from the proceedings to the police in due course. The Father did not want anything he said previously or in the future about the Mother’s allegations and the Court’s findings, to be disclosed.

The Father's application was heard by Hayden J in the first instance on 17 November 2021 and was refused. Hayden J dismissed the application, first, on the basis that it was premature to consider a question of disclosure without knowing what was to be disclosed. Secondly, that it was inappropriate to fashion the protection by analogy with the protection offered by section 98.

The Father sought permission to appeal this decision. In granting permission to appeal, Peter Jackson LJ noted the outcome on merits may be the same the matter raises an important point of law in relation to the disclosure of evidence to police in private proceedings. He then invited the Director of Public Prosecutions to intervene in the appeal proceedings should they so wish.


The Judge's Decision

Family Law

In addition to the Father seeking to parallel his application to the Children Act, the right to be protected from self-incrimination is further complicated by the case being heard in the Family Courts.

Rule 12.73 of the Family Procedure Rules 2010, permits the communication of information where the Court gives permission or where the communication takes place in one of the circumstances listed in Practice Direction 12G.

Numerous considerations must be made by judges when considering the disclosure of information from the family law Courts, including the welfare of the children in the case, children more generally and public interest.

The Submissions on Appeal

The appeal came before the Lord Chief Justice of England & Wales, Lord Justice Peter Jackson and Lord Justice Baker.

The Father’s team argued the initial judgment from Hayden J was wrong as it left the Father with an unfair binary choice and meant the proceedings would not operate in the best interests of the children.

The bench summarised the Father's application as suggesting that he is effectively barred from engaging with the legal process because he might incriminate himself. He would have to choose whether to stay entirely silent to avoid incriminating himself or engage with questions about the extent he "accepts" the findings made against him. It was asserted by Father’s team without some measure of acceptance his application would fail.

The Mother’s application, pursued by Queen’s Counsel Alison Munroe QC and Maggie Jones, instructed by Duncan Lewis argued that the Father has the same choices as any other litigant in this position and that he was seeking a cloak of immunity, which is neither in the public interest, nor in the interests of the children.


Outcome

The Court of Appeal dismissed the Father’s application. The judges held that in making the argument, the Father was not seeking a privilege not to incriminate himself but a privilege to self-incriminate with absolute protection as to the consequences. That would be contrary to the sound administration of justice. The Father's submission risks undermining aspects of the rule of law and gave no weight to the public interest in the conviction of those guilty of serious criminality.



Allison Munroe QC and Maggie Jones were instructed by solicitors Michelle Lubelle and Joanna Walker, of the Family department of Duncan Lewis Solicitors.


 

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