Barry McAlinden represents a mother in private law children proceedings dealing with issues of abuse and self-incrimination

09 February 2023

Barry McAlinden acted for a mother, on a direct access basis, in private law children proceedings concerning her children, aged 2 and 7, with her ex-partner.

The court was asked to decide a multiplicity of issues about the children’s upbringing including their names, schooling, nationalities and the finer detail of contact arrangements.

Allegations of abuse, request to adjourn and issue of self-incrimination

The mother alleged her ex-partner subjected her to serious physical abuse and coercive control and one of the children to physical chastisement.

The court made findings of physical abuse and coercive control which were sent to the CPS. This led to the father being charged with assault and coercive control.

The father then argued that the child law proceedings should be adjourned pending the conclusion of the criminal proceedings.

He claimed he would be unable to address the findings in the family proceedings as he would have to exercise his privilege against self-incrimination (in respect of the charges in the criminal proceedings).

Barry, on behalf of the mother, successfully argued that the proceedings should not be delayed as, amongst other things, there was no substantive issue to determine.

The judgment

As in Re P (Children)(Disclosure) [2022] EWCA Civ 495 the father argued that his right against self-incrimination placed him in an unfair position preventing him for advancing his case. The court rejected this argument.

Instead, the judge concluded that as in Re P, such a submission is based upon a misunderstanding of the scope of the privilege against self-incrimination.

The father’s privilege against self-incrimination did not prevent him from advancing his case in the normal way, including giving evidence himself and / or by challenging the evidence of others.

The court followed the decision in Re P. The judge agreed with Barry’s submissions that it was in the children’s interests to conclude the children proceedings before the criminal proceedings against the father concluded.

Further, as Section 1(2) of the Children Act 1989 makes clear, there is a general principle that delay in determining arrangements for children is likely to prejudice their welfare. There need to be good welfare reasons to justify delay and there was no unfairness to the father to justify delay.

Read the judgment in full in Re O (Children) (Privilege against Self-Incrimination) [2023] EWFC 14