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CARE PROCEEDINGS: Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] EWHC 372 (Fam)

Date:27 FEB 2006

(Family Division; Holman J; 27 February 2006) [2006] FLR (forthcoming)

The father had been convicted of the murder of a 3-month old child, which had been tortured and beaten to death, but was appealing. The mother, who had acted as the key witness for the prosecution, had been convicted of neglect. It was the mother's case that the father had instituted a drug-fuelled regime of terror. In care proceedings concerning the two surviving children, the father refused to give evidence, on the advice of criminal counsel.

Although the father's conviction was clearly a subsisting conviction, the conviction would be left out of account, because of the pending appeal; it was not appropriate to await the outcome of the appeal with the future of two children dependent on the court's decision. The father was clearly in contempt of court, but there was no effective sanction, as he was already in prison serving a life sentence, had little money, and could not be further restricted in his participation in the care proceedings without damaging the court's inquiry into matters concerning the welfare of children. The father had been permitted to cross-examine the mother, given that she seemed able to cope with this, and in the interests of admissibility of the mother's evidence. As the father's refusal to give evidence was based on the advice of his criminal lawyer, no adverse inferences would be drawn from that refusal. However, that advice was criticised as highly tactical, and as revealing a huge cultural gulf between criminal practitioners and those involved in making decisions about the future of vulnerable children. The father's oral evidence during the criminal trial was used, but where it conflicted with the mother's evidence in the care proceedings, carried no weight.