What is Section 98 in the Children Act 1989, and how does this affect you?

Section 98 of the Children Act 1989

Family law proceedings are often quite intense, emotionally challenging, and complex. When serious allegations of abuse arise in family disputes, the stakes become high—not just for the parents and children involved, but also for the professionals who are dealing with the case. One concern in these situations is the extent to which a parent or guardian is required to disclose information that could potentially incriminate them, particularly when there is a risk that such disclosures made could lead to criminal prosecution.

This is where Section 98 of the Children Act 1989 comes into play. The provision is designed to encourage full and frank disclosure in the family court while offering protection from self-incrimination. However, its application can be quite complex, and its implications vary significantly between private law cases (such as disputes between parents) and public law cases (involving care proceedings initiated by the Local Authority).

In this blog, we’ll explore the wording of Section 98, how it operates in practice, and the way case law has influenced its interpretation. We’ll also look at how Section 98 works differently in private law compared to public law cases and why it plays such a crucial role in family law.

Section 98 Children Act 1989

(1) In any proceedings in which a court is hearing an application for an order under Part IV or V [public law proceedings], 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 or civil partner of an offence.

(2) A statement or admission made in such proceedings shall not be admissible in evidence against that person or his spouse or civil partner in proceedings for an offence other than perjury.

This provision is designed to encourage full and truthful disclosure in public law proceedings while offering a safeguard against self-incrimination. However, crucially, it applies only to cases brought under the Part IV or V of the Children Act 1989—meaning it is limited to public law proceedings (such as care proceedings initiated by local authorities) and does not extend to private disputes between parents over child arrangements.

Public Law Care Proceedings: The Protection

When local authorities intervene due to concerns about child abuse or neglect, they may apply for a care order or supervision order under the Children Act 1989. In these cases, the court must determine whether the child is at risk of significant harm and, if so, what action should be taken to protect them.

In such proceedings, parents are not allowed to refuse to answer questions on the grounds that their answers might incriminate them. This ensures that the court can fully explore the circumstances of the case and make decisions in the best interests of the child. However, Section 98(2) provides a crucial safeguard: any statements or admissions made in care proceedings cannot be used as evidence in criminal trials, except in cases of perjury (if the parent is found to have deliberately lied under oath).

This means that if, for example, a father admits in care proceedings that he physically abused his child, that admission should not be used against him in a criminal court—unless he is later prosecuted for perjury. The rationale behind this protection is clear: care proceedings are focused on the child’s welfare, not criminal punishment. The court needs honest answers from parents, and if they feared criminal prosecution as a result, they might withhold critical information.

However, this protection is not absolute. While the specific statements made in care proceedings cannot automatically be used in a criminal trial, the police can still investigate the underlying allegations and request disclosure from the family proceedings. If new evidence emerges, the police can use this information to build a case.

However, Re L (Care Proceedings: Disclosure of Transcript) [2009] EWCA Civ 164 demonstrates that while police can still request access to family court transcripts in care cases, there must be exceptional circumstances to justify this. The court ruled that while police requests for transcripts could be considered, they would not be automatically granted unless there were compelling reasons to do so. This is to prevent the criminal justice system from overshadowing the primary focus of care proceedings, which is child welfare. The intention is to ensure that parents can admit to harmful behaviour in family court without the fear of being criminally prosecuted as a result, as long as the information remains within the family court process.

In reality, the Police can request documents disclosed within care proceedings, but justification will be required to release these documents. These documents can be used as part of the criminal investigation and can only be used within any criminal trial if the evidence given in the criminal proceedings is contrary to that given in the family proceedings and the criminal trial judge agrees.

Private Law Proceedings: No Protection

Unlike care proceedings, private law cases are those brought by individuals, usually as a result of  disputes between parents over child arrangements (such as with whom the child should live or spend time with).These cases do not engage Section 98 because they are not applications made under the Children Act 1989 by a local authority.

This distinction is crucial. In private disputes, if a parent admits to child abuse, there is no legal protection preventing that admission from being used in a criminal trial. Furthermore, police and prosecutors can request transcripts of private law hearings, which can be used in evidence in criminal proceedings.

For example, if a mother alleges in court that the father has sexually abused their child, and the father admits to some form of inappropriate and/or abusive behaviour, that admission can be used directly in a criminal prosecution. Unlike in public law cases, where Section98 provides some protection, this does not exist in private law proceedings.

This difference between public and private law proceedings raises an important question…should parents be afforded the same protection in all family law cases, or does the distinction serve a necessary legal function?

Why the Distinction Matters

The protection afforded by Section 98 in public law cases is based on the principle that care proceedings should focus on child welfare, not on punishing parents. The law prioritises getting to the truth to determine what is best for the child. However, in private law, where the dispute is between two individuals there is no expectation that parents should be protected.

Conclusion

Section 98 Children Act 1989 plays acritical role in care proceedings by encouraging parents to speak freely without fear of self-incrimination. This allows the family court to focus on protecting children without being overshadowed by the threat of criminal prosecution. However, the fact that Section 98 does not apply in private law disputes means that parents in those cases do not have the same protections—raising concerns about fairness and consistency in family justice.

For those involved in family law proceedings, the question remains: How can the justice system strike the right balance between protecting children and ensuring that parents’ rights are safeguarded, especially when the possibility of self-incrimination looms over every word spoken in court?

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Written by Henna Aietan, Paralegal, Derby office

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