Re W-A (children: foreign conviction)
| Jurisdiction | England & Wales |
| Judge | BEAN,PETER JACKSON,DINGEMANS LJJ |
| Judgment Date | 08 August 2022 |
| Court | Court of Appeal (Civil Division) |
Care – Evidence – Foreign conviction – Whether inadmissible under rule in Hollington v Hewthorn – Conviction of sexually abusing a child – Notification requirements in England – Nature of family proceedings – What evidence admissible to court exercising welfare-based jurisdiction.
Evidence – Care – Foreign conviction – Whether inadmissible under rule in Hollington v Hewthorn – Conviction of sexually abusing a child – Notification requirements in England – Nature of family proceedings – What evidence admissible to court exercising welfare-based jurisdiction.
In 2008 the man was convicted in Spain of sexually abusing an 11-year-old child he had been babysitting, by showing her pornographic images on his phone, touching her vagina and penetrating her with his finger. He received a sentence of five and a half years’ imprisonment. His appeal was unsuccessful and he was released from Spanish custody in February 2017. On his return to the UK he was made the subject of an indefinite notification order pursuant to s 96A of the Sexual Offences Act 2003, which made specific provision for notification requirements to apply to those convicted in foreign courts of relevant offences as if they had been convicted in the UK. In June 2019, the man was convicted of failing to comply with the notification order and received a community order and a rehabilitation activity requirement.
In October 2020, the man met the mother online and in January 2021, he moved in with her and her two girls. The local authority began care proceedings in relation to the girls in February 2021 and the girls were placed together in foster care under interim care orders. In June 2021, the mother married the man. Neither girl, now aged 16 and 11, wished to return to live with the mother while the man remained in the house. In August 2021, the man was joined as a party to the care proceedings. He claimed that his Spanish trial had been unfair and that he was not guilty. He further argued that the Court of Appeal decision in Hollington v Hewthorn [1943] 2 All ER 35 meant that his Spanish conviction was not admissible in evidence and that the burden therefore was on the local authority to prove the relevant facts.
Hollington v Hewthorn had concerned civil litigation over a road traffic accident, and had involved a ruling that a conviction for careless driving could not be admitted in evidence. Subsequently the Civil Evidence Act 1968 had provided that in any civil proceedings the fact that a person had been convicted of an offence by any UK court was admissible for the purpose of proving that he had committed that offence, unless the contrary was proved, but the rule in Hollington v Hewthorn still applied to some findings made in civil proceedings and to some foreign convictions.
In June 2022, the judge ruled that the man’s Spanish conviction for sexual offences against a child 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 it unless the man rebutted that presumption on the balance of probability. The effect of this ruling was that in the care proceedings the foreign conviction would be treated in the same way as if it was a conviction of a court in the UK. The judge considered that Hollington v Hewthorn was to be distinguished for a number of reasons, in particular as a case involving no broader public interest, whereas care proceedings concerned the welfare of the child and in such proceedings the court had a duty under s 1 of the Children Act 1989 to consider that welfare.
The man appealed, arguing that the judge had been wrong to distinguish Hollington v Hewthorn.
Held, dismissing the appeal—
(1) Although the present appeal arose in a public law context under Pt IV of the Act, the same issue might arise in a private law case under Pt I, or in a case under the inherent jurisdiction relating to children, or indeed in a welfare case under the Mental Capacity Act 2005, and the court had all of them in mind when it referred to family proceedings. Financial remedy proceedings were also family proceedings, but were beyond the scope of this judgment (see [7], below).
(2) The decisive reasoning in Hollington v Hewthorn was that the interests of justice required a court to reach its own conclusion about the issue before it, without regard to the conclusions of others, unless they were expert witnesses in the usual sense, because (1) without retrying the matter it was not possible to know what the earlier decision proved, and (2) it would be unfair if third parties were prejudiced by decisions to which they were not a party. 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 such proceedings. It was possible to argue, as the judge had done, that the rule in Hollington v Hewthorn could not apply where it was possible to know what the earlier decision had proved and when it would not cause unfair prejudice to the third parties to admit the earlier decision, however, it was unnecessary to found the analysis on these narrower and more contestable matters, which depended on identifying the true ratio of the decision. The purpose of family proceedings was the protection of children and the promotion of their welfare and it was a fundamental principle that the court would take account of all the circumstances of the case. The characteristics of family proceedings spoke strongly against the existence of artificial evidential constraints that might defeat the purpose of the jurisdiction. The obligation to take account of all the circumstances meant that the court was not confined by the way in which the parties put their cases. Provided procedural fairness was observed, it had complete control of the process, which was aptly described as quasi-inquisitorial. However, the important consideration was not that family proceedings were inquisitorial in form but that they were welfare-based in substance (see [8], [9], [14], [30], [35], [50], [54], below).
(3) 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 could admit them in evidence. No distinction was drawn between domestic and foreign findings and convictions, although the weight given in each case might vary, depending on the process that had led to the previous outcome. 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. 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. In this case, for example, the man was a registered sex offender with an English conviction for breach of a notification requirement arising from his foreign conviction. For the family court to refuse to admit into evidence the underlying conviction would be to blind itself to reality (see [18], [19], [51], [52], below).
(4) In this case the judge had been right to find that the man’s conviction was plainly relevant evidence in these proceedings and also to find that there was no rule of evidence that made it inadmissible. As explained in the civil context of Rogers v Hoyle [2013] EWHC 1409, 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 exclusionary rules such as estoppel, res inter alios acta and Hollington v Hewthorn did not apply because they would not serve the interests of children and their families or the interests of justice. The outcome was not unfair to the mother. As the judge had said, she was not in a position to give evidence relevant to the conviction. It was not conclusive and she would have an opportunity to examine any surrounding evidence (see [53], [55], below).
(5) On the basis that the conviction was admissible, the judge had been right to admit it. Indeed there could have been no good reason to refuse. The question of comity was not relevant, while 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 (see [56], below).
(6) 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’. Further, the court’s power to reopen its own findings had no application to the question of how the findings of other tribunals should be treated (see [57], below).
Statutory provisions referred to
Children Act 1989, s 1, Pt IV.
Civil Evidence Act 1968, s 11, s 12, s 13.
Criminal Justice Act 2003.
Mental Capacity Act 2005.
Proceeds of Crime Act 2002.
Rehabilitation of Offenders Act 1974, s 1(4)(a), s 7(2)(cc).
Sexual Offences Act 2003, s 96A, s 96AA.
Civil Procedure Rules 1998 (SI 1998/3132).
Family Procedure Rules 2010 (SI 2010/2955).
The General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004/2608), r 34(3).
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 6.
Cases referred to
A solicitor, Re [1993] QB 69, [1992] 2 WLR 552, [1992] 2 All ER...
To continue reading
Request your trial