Foreign convictions are admissible as evidence in family proceedings, Court of Appeal holds

The Court of Appeal has ruled that foreign judicial findings or convictions that are relevant to a person's suitability to care for children may be used as evidence in family proceedings.

In W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118, Lord Justice Peter Jackson said that the question of the admissibility of a foreign conviction had not previously arisen in family proceedings.

The legal dispute centred around a man, referred to by the court as MH, who was convicted by a Spanish court in 2011 of sexually abusing a child. The conviction led to a five-and-a-half-year prison sentence.

Upon his release in 2017, MH returned to the UK, where he was made the subject of an indefinite notification order pursuant to section 96A of the Sexual Offences Act 2003.

In 2020, he met a mother online and three months later moved in with her and her children. Within a month of the move, interim care orders were made, and the children were placed together in foster care.

The mother and MH later married, leading to MH becoming a party to the care proceedings.

During the proceedings, MH raised the issue of the admissibility of the Spanish conviction.

The matter was then transferred to the High Court, where Mrs Justice Lieven ruled that the Spanish Court's conviction was admissible in the care proceedings as evidence with presumptive weight, meaning that it would be treated in the same way as if it was a conviction of a court in the United Kingdom.

On appeal, MH's central argument was that the decision in Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 bound the judge and bound the Court of Appeal 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.

The rule in Hollington v Hewthorn is that findings of fact by earlier tribunals are inadmissible in subsequent civil proceedings.

Peter Jackson LJ handed down his judgment last week (5 August 2022). In his decision, he noted that it is "settled law" in family proceedings that the findings of previous tribunals may be admitted in evidence and that the court will give such weight to the earlier finding as it considers appropriate in the circumstances of the case.

He added: "No distinction is drawn between domestic and foreign findings and convictions.

"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."

He continued: "The factual question for the Spanish court was whether MH had engaged in sexual activity with a child. The factual question in the present proceedings is exactly the same.

"He has spent half of the past decade in custody. He is, by virtue of the Sexual Offences Act 2003, a registered sex offender. His offences are recorded on the Police National Computer and on a UKCA-ECR certificate. He has a conviction for the breach of a notification requirement arising from his foreign conviction. For the family court to refuse to admit the conviction lying at the root of all this into evidence would be to blind itself to reality."

In light of this, the judge said that the criminal conviction "is plainly relevant evidence" that is admissible in the care proceedings.

He then turned to consider whether the court was bound by authority to reach a different conclusion but said he could "immediately say that in my view we are not".

He noted: "[The] rules of evidence in family proceedings are different to those in other kinds of civil proceedings because the rights and interests at stake are different. It might be said that family proceedings represent an exception to the rules of admissibility that apply in civil proceedings, but the better analysis is that the purpose of rules of evidence is to achieve justice, not injustice, and that strict evidentiary rules such as res inter alios acta, estoppel and the rule in Hollington v Hewthorn have never applied in this welfare-based jurisdiction."

Lord Justice Peter Jackson rejected the appeal. Lord Justice Dingemans and Lord Justice Bean agreed.

In a concurring judgment Bean LJ added that: “As to the point of principle, no one in this case has argued that MH's conviction in Spain should be conclusive. But the suggestion that it should not even be admissible is alarming. It is not difficult to imagine a care case in which a relevant party has been convicted of a serious sexual or violent offence in a foreign court, but the English court has no independent evidence of the facts on which the conviction was based. It cannot 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 is of entirely good character and that the offences of which he was convicted never happened."

Bean LJ continued: “As to the rule in Hollington v Hewthorn, in their 1967 report the Law Reform Committee observed that "rationalise it how one will, the decision in this case offends one's sense of justice"; and that "it is not easy to escape the implication in the rule in Hollington v Hewthorn that, in the estimation of lawyers, a conviction by a criminal court is as likely to be wrong as right". They made recommendations in respect of convictions by UK courts which Parliament promptly enacted in the Civil Evidence Act 1968. However, in paragraph 17 of their report, cited above by Peter Jackson LJ, the Committee recommended no change to make foreign convictions admissible.”

Adam Carey