Section 98 of the children act 1989: bad or just misunderstood

• Published in: Family law (Bristol) Vol. 44; pp. 1003 - 1010
• Main Author: Reed, Lucy
• Format: Journal Article
• Language: English
• Published: 01.07.2014
• Subjects: Child protection; Criminal justice; Family disintegration; Family law; Family policy; Proceedings; United Kingdom
• ISSN: 0014-7281

Section 98 of the Children Act 1989 (the 1989 Act) is one of several provisions that languish towards the tail end of the Act, often forgotten or misremembered in its precise effect by busy practitioners - and it has a tendency to emerge as relevant with little warning. As such it is worth reminding oneself periodically of its application to avoid being caught out. Section 98(1) is one of several statutory provisions which suspends self-incrimination privilege in specified contexts. In this case it renders parents compellable in care proceedings notwithstanding the provision of s 14 of the Civil Evidence Act 1968 (the 1968 Act) (which protects witnesses in civil proceedings from self-incrimination). Section 98(2) then, is the quid pro quo - the offer of conditional secondary privilege which limits the use to which evidence given under compulsion pursuant to s 98(1) can be put. It provides that a statement or admission made in the proceedings is not admissible in evidence against the maker (or his spouse/civil partner) in criminal proceedings, except in the case of a perjury charge. As both judges and commentators have observed, however, s 98(2) offers nothing like a guarantee that parents who respond to encouragement or demands of frankness will be insulated against consequences in the criminal forum.