W-A (Children: Foreign Conviction)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Dingemans,Lord Justice Bean |
| Judgment Date | 05 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1118 |
| Docket Number | Case No: CA-2022-001268 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 1118
Lord Justice Bean
Lord Justice Peter Jackson
and
Lord Justice Dingemans
Case No: CA-2022-001268
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mrs Justice Lieven
NNC21C00023
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan Vine QC and Alex Forbes (instructed by Jackson West Solicitors) for the Appellant
Nick Goodwin QC and Stuart Yeung (instructed by Pathfinder Legal Services Limited) for the Respondent Local Authority
Sam Momtaz QC and Samantha Dunn (instructed by Wilson Browne Solicitors) for the Respondent Mother
Andrew Norton QC and Christopher Adams (instructed by Sills & Betteridge LLP) for the Respondent Children through their Children's Guardian
Hearing date: 19 July 2022
Approved Judgment
Introduction
This appeal arises in the course of care proceedings concerning two girls, aged 16 and 11. The appellant is their mother's husband (‘MH’). He appeals from a ruling made by Mrs Justice Lieven on 21 June 2022 that his conviction for sexual offences against a child in a Spanish court is admissible in the care proceedings as evidence with presumptive weight, so that the fact of the conviction will stand as proof of the facts underlying it unless MH rebuts that presumption on the balance of probability. The effect of the ruling is that in these family proceedings the foreign conviction will be treated in the same way as if it was a conviction of a court in the United Kingdom.
MH's central argument is that the decision of this court in Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 bound the judge and binds this court to reach the opposite conclusion, namely that the Spanish conviction is not admissible in evidence and that in consequence the burden remains on the local authority to prove the facts underlying the conviction in the same way as if he had never been convicted.
The question of the admissibility of a foreign conviction has not previously arisen in family proceedings. On 7 July, I gave permission to appeal and on 19 July we heard the appeal. We are grateful for the efficient way in which it has been prepared and presented. At the end of the hearing we informed the parties that the appeal would be dismissed and I now give my reasons for joining in that decision.
The background
On an occasion in August 2008, MH, then aged 44, babysat an 11 year old girl. In February 2011, he was convicted at the Provincial Court Section No. 7 of Elche/Elx, Spain, of sexually abusing the child by showing her pornographic images on his phone, touching her vagina and penetrating her with his finger. He received a sentence of 5 1/2 years imprisonment. His appeal was unsuccessful. He was released from custody in February 2017. He returned to the United Kingdom and in August 2017 he was made the subject of an indefinite notification order pursuant to section 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 he had been convicted in the United Kingdom. In June 2019 he was convicted of failing to comply with the notification order and he received a community order and a rehabilitation activity requirement.
In October 2020 MH met the mother online and in January 2021 he moved in with her and her children. On learning of this, the local authority began proceedings in February 2021. Interim care orders were made and the children were placed together in foster care, where they remain. In June 2021 the mother and MH married. At present, neither child wishes to return to live with their mother whilst MH remains in the house. In August 2021, he was joined as a party to the care proceedings.
As the proceedings progressed, a number of assessments were necessary and an Issues Resolution Hearing could not take place until April 2022. It was only then that counsel for MH raised the issue of the admissibility of the Spanish conviction, which had previously been generally assumed to be admissible and had formed the basis for the assessments that had been carried out. The matter was transferred to the High Court and listed before Lieven J, who heard submissions on 6 June and gave judgment on 21 June.
Family proceedings
Although the present appeal arises in a public law context under Part IV of the Act, 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, and I have all of them in mind when I refer to family proceedings. Financial remedy proceedings are also family proceedings, but are beyond the scope of this judgment.
The modern touchstone for the admissibility of evidence is relevance, whereby proof of one fact makes probable the existence of another. When considering whether evidence is relevant, the starting point must be the nature of the proceedings in which the question arises. The purpose of family proceedings is the protection of children and the promotion of their welfare and it is a fundamental principle that the court will take account of all the circumstances of the case, as stated by Hollings J in In re H (A Minor) [1982] Fam at 132:
“When welfare considerations apply, where the welfare of the minor is paramount… the very welfare of the minor dictates that regard must be had to every matter which bears upon a possible risk or benefit to the child…”
This is reflected in s. 1(3) the Children Act 1989, which requires the court to have regard in particular to the factors in the welfare checklist.
One checklist factor is any harm which the child has suffered or is at risk of suffering. This calls for a risk assessment in the light of findings of fact arrived at in the normal way, with the burden of proof being on the party seeking a finding to prove it on a balance of probability. The obligation to take account of all the circumstances means that the court is not confined by the way in which the parties put their cases. Provided procedural fairness is observed, it has complete control of the process, which is aptly described as quasi-inquisitorial.
The proviso concerning procedural fairness is of course important. Natural justice and Art. 6 ECHR sound as clearly in family proceedings as in any other context. At the same time, there will be circumstances in which perfect fairness to all parties cannot be achieved and the court must protect each competing interest to the greatest possible extent, having regard to the purpose of the proceedings themselves. The rights and interests of the child will generally predominate where they conflict with the interests of others, but there is always a balance to be struck.
The present case offers a clear illustration of this tension. The central issue is whether MH poses a sexual risk to children. The incident that led to the Spanish conviction is the lynchpin of the local authority's case. MH accepts that he was convicted but says that he was not guilty. He also argues that his trial (at which he and the child gave evidence) was unfair in a number of ways. He has produced a certain amount of documentation surrounding his conviction and more may be available by the time of the final hearing. However, the question of admissibility cannot turn on the attitude of the parties or the availability of surrounding information and the matter must be approached as if this was a bare conviction.
Accordingly, when the case is finally heard there are two possibilities. The first is that the conviction is not admitted and the local authority is required to prove the allegation of sexual abuse as if there had been no conviction. That may be impossible, given the length of time that has passed, and in consequence the threshold may not be crossed with the result that the proceedings would founder. The second possibility is that the conviction is admitted, with MH having the opportunity to persuade the court that it should not rely upon it; again, that may not be easy. It is therefore necessary to select the outcome that is more consistent with the purpose of the proceedings themselves.
Family proceedings involve a fact-finding element, on the basis of which assessments and decisions are made. In care proceedings, proof of the significant harm threshold is a precondition for the court to exercise its powers and it has been said that, while the proceedings overall are essentially inquisitorial, they are necessarily adversarial in that respect: Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5; [2013] 1 FLR 1250 at [70] (Sir James Munby P). However, the fact-finding element of the process cannot be isolated from the welfare decision it informs. In this respect the position differs from other kinds of civil proceedings, as reflected in the respective procedural rules. The overriding objective under the Civil Procedure Rules is to enable the court to deal with cases justly and at proportionate cost, while under the Family Procedure Rules it is to enable the court to deal with cases justly, having regard to any welfare issues involved.
The characteristics of family proceedings therefore speak strongly against the existence of artificial evidential constraints that may defeat the purpose of the jurisdiction.
Previous judicial findings
Against this background I turn to the question of the use of previous judicial findings in family proceedings. It is commonplace for there to have been previous family proceedings involving more than one of the parties and for the findings in those proceedings to be admitted as evidence in the later proceedings. There are many permutations. As Hale J said in In re B (Minors) (Care Proceedings: Issue...
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