Re W-A [2022] EWCA Civ 1118

Admissibility of foreign conviction A paedophile argued that his conviction in Spain was inadmissible in English care proceedings. The judge noted that, while this was a public law case under Part IV Children Act 1989, the same issues may arise in a private law case under Part I, or the inherent jurisdiction relating to children, or a MCA 2005 welfare case. The Court of Appeal concluded that: (1) the rule in Hollington v Hewthorn [1943] 1 KB 587 (which, unless distinguished, would render the conviction inadmissible) did not apply, as it would be incompatible with the welfare-based and protective character of family proceedings; (2) in family proceedings all relevant evidence is admissible; and (3) a previous finding or conviction stands as presumptive proof of the underlying facts, but it is open to a party to establish on a balance of probability that it should not be relied upon.

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[2022] WLR(D) 348B

Court of Appeal

W-A (Children: Foreign Conviction)

[2022] EWCA Civ 1118B

2022 July 19; Aug 5

Bean, Peter Jackson, Dingemans LJJ

Evidence— Admissibility— Conviction— Local authority issuing care proceedings in respect of two children— Mother’s husband having previous conviction for sexual offence in Spanish court— Judge allowing fact of conviction to stand as proof of facts underlying unless defendant rebutting presumption— Whether Spanish conviction admissible as evidence in care proceedings

In the course of care proceedings concerning two girls, H, the mother’s husband, appealed from a ruling made by the judge that his conviction for sexual offences against a child in a Spanish court was admissible in the care proceedings as evidence with presumptive weight, so that the fact of the conviction would stand as proof of the facts underlying unless rebutted on the balance of probability. The effect of the judge’s ruling was that in the domestic family proceedings, the foreign conviction would be treated in the same way as if it was a conviction of a court in the United Kingdom. The judge, in so holding, declined to follow Court of Appeal authority to the effect that a previous criminal conviction was inadmissible in a civil negligence claim, where the issues in the criminal proceedings were not identical to those in the civil proceedings. H appealed on the grounds that (i) the judge should have followed the Court of Appeal authority and held that the Spanish conviction was inadmissible and that the burden remained on the local authority to prove the facts underlying the conviction in the same way as if he had not been convicted. (ii) If the court had a residual discretion, the judge placed inappropriate weight on considerations of comity and evidential difficulty for the local authority. (iii) If foreign convictions were admissible, the judge was wrong in law to hold that they carried presumptive weight. The law required no weight at all to be given to the foreign conviction.

On H’s appeal—

Held, appeal dismissed. 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 might 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 of Appeal authority relied on rule did not apply in family proceedings because such a rule was incompatible with the welfare-based and protective character of the proceedings. In family proceedings, the fact finding element of the process could not be isolated from the welfare decision it informed, as was reflected in the overriding objective in the Family Procedure Rules. It followed that the findings of previous tribunals might be admitted in evidence and the court would give such weight to the earlier finding as it considered appropriate in the circumstances of the case, while remaining alert to the need for fairness to all parties in the procedure it adopted. No distinction was drawn between domestic and foreign findings and convictions, though the weight that would be given in each case might vary, depending upon the process that led to the previous outcome. Any other approach would severely conflict with the court’s overriding duty to get at the truth in the interests of the child and would in many cases lead to absurdity. The modern approach was that judges could be trusted to evaluate evidence in a rational manner, and that 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. This was all the more so in family proceedings, where the rights and interests at stake were different, and where exclusionary or strict evidentiary rules did not apply because they would not serve the interests of children and their families or the interests of justice. The circumstances of the original finding or conviction and the difficulties of proof in an individual case were matters for the court to keep in mind when it came to weigh the evidence as a whole. In the circumstances of the present case, for the family court to refuse to admit the conviction into evidence would be to blind itself to reality. Accordingly, the judge had been correct to find that the conviction of H was plainly relevant evidence in the proceedings and that there was no rule of evidence that made it inadmissible (paras 7, 13, 18–21, 50–58, 59, 60).

Dicta of Leggatt J in Rogers v Hoyle [2015] QB 265Not on Bailii!, para 27, applied.

Hollington v F Hewthorn & Co [1943] KB 587Not on Bailii!, CA distinguished.

Aidan Vine QC and Alex Forbes (instructed by Jackson West Solicitors) for H.

Nick Goodwin QC and Stuart Yeung (instructed by Pathfinder Legal Services Ltd) for the local authority.

Sam Momtaz QC and Samantha Dunn (instructed by Wilson Browne Solicitors) for the mother.

Andrew Norton QC and Christopher Adams (instructed by Sills & Betteridge LLP) for the children through their children’s guardian.

Isabella Marshall, Barrister

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Full judgment: BAILII

Subject(s):

  • Miscellaneous cases🔍

Date: 5/8/22🔍

Court: Court of Appeal (Civil Division)🔍

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Published: 12/8/22 20:12

Cached: 2024-03-03 12:33:55