R v P (Children: Similar Fact Evidence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Hickinbottom,Lord Justice David Richards |
| Judgment Date | 18 August 2020 |
| Neutral Citation | [2020] EWCA Civ 1088 |
| Date | 18 August 2020 |
| Docket Number | Case No: B4/2020/1196 |
| Year | 2020 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1088
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
Her Honour Judge Jacklin QC
ZE17P01593
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Hickinbottom
and
Lord Justice Peter Jackson
Case No: B4/2020/1196
Maggie Jones (instructed by Duncan Lewis Solicitors) for the Appellant
Mother Tom Wilson (instructed by Freemans Solicitors) for the Respondent Father
Hearing date: 6 August 2020
Approved Judgment
Introduction
This is an appeal from a case management decision to exclude evidence in family proceedings. The proceedings are a father's application for contact with children now aged 5 and 2. The mother opposes contact on the basis that the father had subjected her to extreme coercive and controlling behaviour and to sexual abuse, including rape. In support of her case, she wants to rely on evidence of what she argues is strikingly similar coercive and controlling behaviour by the father towards another woman, with whom he began a relationship shortly after her relationship with him ended. It was that evidence that was excluded.
At the end of the appeal hearing, we told the parties that the appeal would be allowed and that the contested evidence would be reinstated. We transferred the proceedings to High Court level for a fact-finding hearing. I now give my reasons for agreeing with that decision. In doing so, I will consider the approach to be taken to similar fact evidence in civil and family proceedings.
The background
The children's parents, who are in their mid-twenties, began a relationship in 2013 when they were university students. They married in 2014 and in the same year the older child was born. They then moved around a great deal. In September 2017, by which time they were living in London, the mother left the father and later that year the younger child was born. The father has not seen the older child since the separation and has never seen the younger child.
In October 2017, the father began proceedings for contact. It is unnecessary to describe the extremely difficult procedural history in full. It is enough to say that there has unfortunately been no judicial continuity, with the case coming in front of at least 15 judges, that the parents have both been unrepresented at times, that the papers that were before the judge ran to 1600 pages, that the mother now has an intermediary, and that a fact-finding hearing, listed for the week of 17 August 2020, was the sixth occasion on which such hearing had been listed. It is not at all surprising that the judge, who was new to the case, was determined that that hearing should go ahead if possible.
In November 2017, the mother applied for and was granted a non-molestation order against the father. That order has been renewed and remains in effect. The allegations that the mother has made in support of that order and in opposition to the father's contact application include these allegations of coercive and controlling behaviour by the father:
• He insisted on her abandoning her studies.
• He mispresented his name, occupation and financial position to her parents.
• He sent messages to her family purporting to be from her.
• He isolated and alienated her from hitherto close family and friends.
• He made baseless allegations to public bodies, including to the police, against her family.
• He required her to move constantly to isolate her and to avoid them being found by family and public bodies, to the extent that her parents hired a private detective to locate her and their grandchild.
• He shouted at the older child
She alleges that the father's behaviour led to a wholesale change in her demeanour and character. In support of this, she relies on statements from her own parents.
In the contact proceedings, the court commissioned reports under s.7 Children Act 1989 from a London local authority. The first report in March 2018 recommended some supervised contact. The second report in May 2019 recommended that there should be no contact until there had been a fact-finding hearing. The change in recommendation arose in this way. Three months after the mother had left the father, so in January 2018, he began a relationship with a Mrs D. She was a 45-year-old graduate who worked as a primary school teacher and lived in the London area with her two children, aged 11 and 9. She had separated from the children's father, Mr D, two years previously and he was seeing the children regularly. When the first report was prepared by the London authority, Mrs D had been interviewed as the father's new partner and she spoke in favour of his application for contact. Until the mother received that report, she had been unaware of the father's relationship with Mrs D.
In January 2019, on police advice, a Welsh local authority contacted the London local authority to alert it to the fact that there were ongoing proceedings in Wales in respect of Mr and Mrs D's children. Mr D had issued a contact application and in those proceedings the court had commissioned a section 37 report, which had been completed in early December 2018. The report raised considerable concerns about the welfare of those children and about the nature of the relationship between the father and Mrs D. It revealed that Mrs D had abruptly resigned from her teaching job in London, that she and the father had moved to Wales with the children and that all contact between the children and Mr D had stopped. In December 2018, following receipt of the section 37 report, the court in Wales had ordered that the children be removed from their mother's care and placed in the care of their father under an interim order. Since the children's removal from her care, Mrs D had not engaged with the local authority or made any efforts to see her children. The Welsh local authority had concluded that the father had behaved in a coercive and controlling way towards Mrs D. It was communicating its report because it considered that its information was likely to be relevant to the enquiries of the London local authority.
In February 2019, the Welsh local authority filed a section 7 report recommending that a final order be made for the children to live with Mr D, and in the same month the court made that order without participation from Mrs D. The report described her as a high functioning, intelligent and sensible adult who had been a committed and doting mother. It referred to accounts given by the boys of being mistreated by the father. The author, KS, described it a very sad situation and said that she had concerns for the welfare of Mrs D.
The mother's case is that the unsolicited reports from the Welsh proceedings contain relevant evidence showing that:
• Mrs D left her job as a primary school teacher within months of meeting F, and that the school was sufficiently concerned to make a referral to adult and child social services.
• Mrs D quickly became estranged from hitherto close family relationships and friends.
• Mrs D lost the care of her much-loved children and appeared not to have made efforts to keep in contact with them.
• The father had made baseless accusations to public bodies, including the police, against Mrs D's family, claiming harassment by them, and had applied for and obtained a non-molestation order against the mother (in February 2019 in a court in the North-West, where he and Mrs D were by then apparently living).
• The father and Mrs D had repeatedly moved around (including with the D children) to avoid detection by family and public bodies, leading to Mrs D's parents hiring private detectives to try to locate her and their grandchildren.
• The father had repeatedly shouted at one of the D children (this was videoed by a concerned neighbour).
• The father mispresented himself to Mrs D and her parents including in respect of his name, occupation and financial position.
• Mrs D underwent a rapid and wholesale change in her demeanour.
Returning to the proceedings concerning these children, the issue of the admission of evidence relating to the father's relationship with Mrs D was played out in an unsatisfactory way against the background of repeated attempts to hold a fact-finding hearing. In brief, the issue arose at four hearings before the one with which we are concerned on this appeal:
(1) In February 2019, the court ordered the mother's solicitors to write to the court in Wales seeking disclosure of the two reports of the Welsh local authority and recited that the court was of the view that those reports would be of assistance in the current proceedings. The father was absent from that hearing.
(2) In May 2019, a deputy district judge directed the updating section 7 report from the London local authority in order to take account of the contents of the Cardiff reports, which had by then been received. The mother was unrepresented. The father sought a direction for the attendance of KS and she was invited to attend, though the court indicated that the fact-finding hearing would go ahead in any event. The non-molestation order against the father was extended. The father's application for a continued non-molestation order against the mother (transferred from the North-West in February) was dismissed as being without merit.
(3) In July 2019, the parties appeared before the same deputy district judge. The mother was unrepresented. The order recorded that the court would not be assisted at the fact-finding hearing by the evidence of KS. What was meant by this was...
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