Analysis
14.It is worth just stepping back and considering the procedural history of this case. The parties’ relationship ended in May 2021. The mother’s application for the court to determine the arrangements for these children was issued on 19 October 2021. On 23 December 2021 District Judge Thomas conducted the FHDRA and determined that a fact-finding hearing was necessary. There was, however, insufficient court time available to enable any further issues to be determined, including the scope of the fact -finding hearing and the issue of interim contact, both of which were highly contentious matters. The parties were then provided with the next one hour listing date available, which was in November 2022, almost 12 months later. When the parties complained they were given a hearing in March 2022 before me. At that point I reserved the proceedings to myself which has enabled matters to proceed as swiftly as is possible. Nonetheless, it has taken over 15 months to get to this point, which is a very long time particularly in the lives of two young children. 15.This case has already occupied 5 days of court time for the fact-finding and then this final hearing. I count that there have been 6 additional hearings. Although notionally listed for 1 hour each, inevitably such hearings take up considerably more court time than is allocated. 16.The father invites me to list the matter for a further day in March or April 2023 on the basis that the criminal court will then have determined his bail conditions pending the trial. The father also invites me to adjourn these welfare proceedings for a further final hearing. If I accept that invitation, I will need to find another 4 court days for this case, one in the next few months and then a further 3 days towards the end of 2023 or the beginning of 2024. Logically, any delay in the anticipated progress of the criminal process would then require me to further adjourn these proceedings. 17.The starting point for the father’s submissions is that he has a privilege against self-incrimination, following the decision of the Court of Appeal in Re P (Children) (Disclosure) [2022] EWCA Civ 495. The mother agrees that he has such a privilege.18.In Re P the father had been the subject of findings within private law children proceedings of serious criminality against the mother. In advance of the subsequent welfare hearing he sought an order to provide that any statements or admissions made by him in the continuing private law proceedings would not be disclosed to the police, or by extension to the CPS. The essence of his argument was that the private law children proceedings would not be fair unless he was given this protection. Hayden J refused that application ([2021] EWHC 3133 (Fam)) and this decision was upheld on appeal. In the Court of Appeal, the father submitted that he was facing an unfair binary choice. The father’s silence would leave an evidential gap on the important issue of whether the father recognised and had insight into his conduct. As such, it was argued, the proceedings would not operate in the best interests of the children.19.The Court of Appeal held that the judge had been correct not to entertain a pre-emptive and blanket application for protection from onward disclosure. The Lord Chief Justice (delivering the judgment of the full court) said that any potential incriminating admissions by the father were, at that stage of the proceedings, entirely hypothetical. The father was not entitled to “a blank cheque” and the judge had been right “to decline to embark on such an unsound exercise”. 20.Furthermore, the Court of Appeal did not accept the submission that the father in that case had in fact been faced with a binary choice:33.Moreover, we do not accept that the father has a binary choice of the sort he suggests, namely involvement or staying silent. Putting the case in that way is apt to confuse the scope of the privilege against self-incrimination which the father enjoys in these private law proceedings. He is a party to the proceedings and has made an application for contact with his two children. He responds to the mother's counter application. In pursuing his application, he is engaged in the proceedings and has assumed an evidential burden. His privilege against self-incrimination entitles him to refuse to answer questions when giving evidence in court that tend to incriminate him. The privilege extends to refusing to answer such questions from a Cafcass officer because his answers would be admissible in the family proceedings. He would also be entitled to avoid making incriminating statements in any written evidence he produced in the proceedings. The privilege does not entitle a witness or party to refuse to engage at all. In simple terms, a witness would not be entitled to say that he or she refuses to answer any and all questions.”21.The Lord Chief Justice concluded his judgment by saying:“42.We see nothing unfair in expecting the father to make his case in the family proceedings to secure the outcome he desires and, if he considers it to be the case, to seek to persuade the judge that contact is in the best interests of his two children. He played a full part, including giving evidence, in the fact-finding hearing. If he has decided that his evidence in that earlier hearing was untrue and wishes to qualify or change it there is nothing unfair in letting him choose to do so. We observe that even section 98 of the 1989 Act provides no protection in the case of perjury. The Strasbourg Court generally looks at the totality of proceedings before determining whether they have been fair for the purposes of article 6. It does not exclude the possibility that a single step may render them unfair. Yet it is inconceivable that the refusal of a pre-emptive blanket order of this sort could amount to a violation of article 6. We are satisfied that the approach to disclosure from the family proceedings found in Re EC (Disclosure of Material) (see para. 17 above) provides appropriate protections and ensures that the family law proceedings would, in this respect, be fair.”22.The father in the present case is in a similar position to the father in Re P. As in Re P the court has made significant findings against him. As in Re P the father argues that his right against self-incrimination places him in an unfair position. Either he waives his right or, alternatively, he finds himself unable to challenge the position adopted by the mother as supported by the Family Court Adviser. In short, he says that he cannot provide the mother, the FCA or the court with any detailed reassurance that he accepts the findings made against him without thereby incriminating himself and risking disclosure of any admissions to the police and / or CPS. Prevented by Re P from seeking a pre-emptive order to prevent disclosure should he decide to make such admissions, he is therefore driven to invite the court to delay these private law children proceedings until the criminal process has concluded.23.However, as is clear from the passages I have quoted above from the judgment of the Lord Chief Justice in Re P, such a submission is based upon a misunderstanding of the scope of the privilege against self-incrimination. The father is engaged voluntarily in these proceedings and ‘has assumed an evidential burden’. He has played a full part in the proceedings to date and if he wishes to persuade me to make a contact order different from that advanced on behalf of the mother he has every right to do so. If he wishes to qualify or change any part of his evidence within the fact-finding hearing there is nothing unfair in letting him do so. If in the course of such evidence he decides to waive his privilege against self-incrimination, or any part of it, then Re EC will provide him with the appropriate protection to ensure that these private law proceedings remain fair. In other words, at this final hearing there is available to him a fair process to resolve the outstanding issues relating to the welfare of his children, notwithstanding his privilege against self-incrimination. 24.What the father’s argument loses sight of is that the lives of C and F cannot be put on hold pending the outcome of these criminal proceedings against their father. Arrangements for them need to be agreed between their parents or else determined by the court. As Section 1(2) of the Children Act 1989 makes clear, there is a general principle that delay in determining those arrangements are likely to prejudice their welfare. There need to be good welfare reasons to justify delay. Whilst unfairness to one parent in the court process could provide such a reason, there is no such unfairness to the father within these private law proceedings.25.In my view, therefore, the father’s case as set out in his solicitor’s correspondence and in Ms Pomeroy’s submissions is overstated. His privilege against self-incrimination does not prevent him from advancing his case in the normal way, including giving evidence himself and / or by challenging the evidence of others. He cannot, however, be compelled to give evidence which marks the distinction between private and public law children proceedings and also marks the importance of the provisions of s.98 Children Act 1989. 26.As I have said, these proceedings have been ongoing for 15 months. The adjournment sought on behalf of the father would result in significant additional delay for these children and for these parents. The criminal proceedings are at their very earliest stages. They may take a year or more to reach a conclusion. These proceedings cannot just wait ‘on hold’ for the criminal process to reach a conclusion. 27.Moreover, to adopt such a course would encourage an unnecessary and counterproductive dependence upon the court. An expectation that, hearing by hearing, the court will resolve issues between the parents as they arise. These proceedings have already generated a multiplicity of issues including disputes as to the children’s names, their nationalities, who should hold their passports, their schooling, as well as the finer detail of the contact arrangements. It has not been necessary for me to determine all of these, but they have been ventilated before me both in writing and orally. As I said during the course of submissions, these parties need to find a better way to resolve their disputes, only returning to the court process where such efforts have been tried and failed.28.The father’s application to adjourn relies to some extent upon the proposition that it would be unfair to him, or to the children, to require him to restart proceedings should further welfare issues arise. I do not agree with that proposition. This case is no different from many other private law disputes. The court process is designed to ensure that cases are resolved, where possible, without the need for lengthy hearings and that each case is allotted an appropriate share of the court’s resources. This final hearing has now concluded with the issues that had been identified through the case management process having been resolved by agreement or determination. There is no need to allot further time or court resources to it. 29.Finally, I do not agree with the suggestion that my determination of the appropriate child arrangements for this family should be subject to review once the criminal court has considered the bail arrangements for the father. This court and the criminal court perform different functions. Neither has any priority over the other. The arrangements set out within this court’s order have been approved or directed by me because I consider them to be in these children’s best interests. If they cannot be implemented (for whatever reason) then it is incumbent on the parties to agree arrangements that can be implemented or else to seek to restore the matter to court. No doubt, as a matter of practice, child arrangements that have been ordered and very quickly prove to be incapable of implementation (for reasons outside of the control of the parties) are unlikely to be treated as entirely fresh applications. However, in my view it would be wrong to anticipate that such a problem will arise in this case or to delay decision making in the expectation that it might. 30.Accordingly, I refuse the father’s application to adjourn these proceedings and make final child arrangements orders.