The question of admissibility of a foreign conviction has not previously arisen in family proceedings.

The recent landmark appeal of W-A (Children: Foreign Conviction) [2022] EWCA Civ 1118 arose during care proceedings concerning two girls aged 16 and 11. The appellant in this appeal was their mother’s husband (MH). In February 2011, MH was convicted abroad of sexually abusing a child. He received a sentence of five and a half years’ imprisonment and soon after his release, returned to the United Kingdom.

In October 2020, MH met the mother and soon after moved in with her and her children. As a result, the local authority began proceedings. Interim care orders were made, and the children were placed together in foster care. At a late stage in the proceedings, counsel for MH raised the issue as to the admissibility of MH’s foreign convictions, which had previously been generally assumed to be admissible and had formed the basis for assessments previously carried out.

MH appealed from a ruling made by Mrs Justice Lieven that his convictions for sexual offences against a child by a foreign court were admissible in the care proceedings as evidence of presumptive weight, so that the fact of the convictions stood as proof of the facts underlying them, unless MH was able to rebut that presumption on the balance of probability. The effect of the ruling is that in family proceedings, a foreign conviction will be treated in precisely the same way as if it was a conviction of a court in the United Kingdom.

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 foreign convictions were not admissible in evidence and that in consequence the burden remained on the local authority to prove the facts underlying the convictions, in the same way as if MH had never been convicted.

The starting point for the admissibility of evidence within the family arena is of relevance. The purpose of family proceedings is the protection of children and the promotion of their welfare. It is a fundamental principle that the court will take account all the circumstances of the case, reflected in Section 1(3) the Children Act 1989 of the welfare checklist.

The fundamental issue was whether MH posed a sexual risk to children. The incident that led to the foreign convictions was the lynchpin of the local authority’s case. MH accepted that he was convicted but maintained that he was not guilty of the offences.

There were two possible outcomes in this appeal:

  • The first is that the convictions are not admissible and the local authority is required to prove the allegation of sexual abuse as if there had been no conviction; and
  • The second possibility is that the convictions are admissible, with MH having the opportunity to persuade the court that it should not rely upon them.

The Court of Appeal upheld the first instance decision, holding 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, while remaining alert to the need for fairness to all parties in the procedure it adopts. No distinction is drawn between domestic and foreign findings and convictions, though the weight that will be given in each case may vary, depending upon the process that led to the previous outcome.

As a matter of principle, it was held that the criminal convictions are plainly relevant evidence which are admissible in the care proceedings.

Family proceedings represent an exception to the rules of admissibility that apply in civil proceedings. The purpose of rules of evidence is to achieve justice, not injustice, and the strict evidentiary rules such as res inter alios acta, issue estoppel and the rule in Hollington v Hewthorn have never applied in this welfare-based jurisdiction. On this basis, the court will rarely exclude relevant evidence.

In the alternative, should the foreign convictions not be admissible to establish the underlying facts, the local authority would find it very hard to prove their threshold. There is a real possibility that this would then put the children in the case at risk of significant harm.

Consequently, exclusionary rules such as issue estoppel, res inter alios acta and Hollington v Hewthorn do not apply because they would not serve the interests of children and their families or the interests of justice.

Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person’s suitability to care for children or some other issue in the case, the court may admit them in evidence.

The effect of the admission of a previous finding or conviction is that it will stand as presumptive proof of the underlying facts, but it will not be conclusive, and it will be open to a party to establish on a balance of probability that it should not be relied upon.

In this case, the judge was right to find that the conviction of MH was plainly relevant evidence in these proceedings and that there is no rule of evidence that makes it inadmissible.

The modern approach is that judges can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules. This is all the more so in family proceedings.

Lord Justice Bean concluded:

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.

Samuel Arksey was Called to the Bar in 2021, and is a family law barrister at Senate House Chambers. Prior to joining chambers, Samuel served five years in the British Army as an Ammunition Technician.