Family Proceedings: Admissibility of Foreign Conviction
The Court of Appeal considered for the first time the admissibility of a foreign conviction in family proceedings: W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118 – Bean, Peter Jackson, Dingemans LJJ
Although the present appeal arose in a public law context under Part IV of the Children Act 1984, the same issue may arise in a private law case under Part I, or in a case under the inherent jurisdiction relating to children, or indeed in a welfare case under the Mental capacity Act 2005.
Giving the unanimous judgment of the court, Peter Jackson LJ had them all in mind when he referred to family proceedings.
The appeal arose in the course of care proceedings concerning girls aged 16 and 11. The appellant was their mother’s husband (MH) who met the mother on line and subsequently moved in with her and her two children.
The local authority began proceedings upon hearing of his conviction in Spain in 2011 of various offences of sexual abuse of a child when he was sentenced to five and a half years’ imprisonment. Interim care orders were made, the children placed in foster care where they remained and neither child wished to return to live with their mother whilst MH remained in the house.
In June of this year Lieven J ruled that his conviction by a Spanish court for sexual offences was admissible in the care proceedings as evidence with presumptive weight so that the conviction would stand as proof of the facts underlying it unless MH rebutted that presumption on the balance of probability.
The effect of that ruling was that in these family proceedings the foreign conviction would be treated in the same way as if it were a conviction of a court of the United Kingdom.
MH’s central argument was that the decision of the Court of Appeal in Hollington v Hewthorn[1] bound the judge and this court to reach the opposite conclusion, namely that the Spanish conviction was not admissible in evidence and that in consequence the burden remained on the local authority to prove the facts underlying the conviction in the same way as if he had never been convicted.
Dismissing the appeal, Peter Jackson LJ said that the rule in Hollington v Hewthorn did not apply in family proceedings as defined because such a rule was incompatible with the welfare-based and protective character of the proceedings.
In family proceedings all relevant evidence was admissible. Where previous judicial findings or convictions, whether domestic or foreign, were relevant to a person’s suitability to care for children or some other issue in the case, the court may admit them in evidence.
The effect of the admission of a previous finding or conviction was that it would stand as presumptive proof of the underlying facts, but it would not be conclusive and it would be open to a party to establish on a balance of probability that it should not be relied upon. The court would have regard to all the evidence when reaching its conclusion on the issues before it.
The judge was right to find that the conviction of MH was plainly relevant evidence in these proceedings and there was no rule of evidence that made it inadmissible.
As Leggatt LJ said in the civil context[2], the modern approach was that judges could be trusted to evaluate evidence in a rational manner, and the ability of tribunals to find the true facts would be hindered and not helped if they were prevented from taking relevant evidence into account by exclusionary rules.
The outcome was not unfair to the mother. As the judge said, she was not in a position to give evidence that was relevant to the conviction. It was not conclusive and she would have an opportunity to examine any surrounding evidence.
On the basis that the conviction was admissible, the judge was right to admit it; there could have been no good reason to refuse.
Once a conviction was admitted it inevitably became evidence with presumptive weight, otherwise there would be no purpose in admitting it. It would be meaningless to treat it as “just another piece of evidence”.
No-one in the case had argued, added Bean LJ, that MH’s conviction in Spain should be conclusive. But the suggestion that it should not even be admissible was alarming.
It was not difficult to imagine a care case in which a relevant party had been convicted of a serious sexual or violent offence in a foreign court, but the English court had no independent evidence of the facts on which the conviction was based.
It could not be right that in such a case the family court in England and Wales deciding issues relating to the welfare of children should have to ignore the conviction and somehow pretend that the relevant party was of entirely good character and that the offences of which he was convicted never happened.
[1] [1943] 2 All ER 35; [1943] 1 KB 587
[2] Rogers v Hoyle [2013] EWHC 1409 (Leggatt J) and Hoyle v Rogers [2014] EWCA Civ 257; [2014] 3 All ER 550 (CA)
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