Can a foreign conviction establish threshold in care proceedings?

I already know that regular reader David Burrows is going to love this case.

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1118.html

W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118 (05 August 2022)

This is an appeal, by a man named MH (mother’s husband) against a decision by the High Court that his conviction for sexual offences against a child in Spain would stand as presumptive evidence of proof of the facts underlying the conviction in an English Court dealing with care proceedings. That is, that in order to rely on those facts the Local Authority didn’t have to go and prove those allegations again.

It seems at first instance a peculiar appeal, because the common sense answer would seem to be, yes, of course the foreign conviction can be relied upon.

But we go back to both a 1943 road traffic accident claim and some 1968 legislation to look at it, and the issue doesn’t ever seem to have come up before.

The 1943 road traffic accident claim is Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 a Court of Appeal decision. The plaintiff was suing the defendant for a road traffic accident and wanted to rely on the defendant’s conviction for dangerous driving. The Court of Appeal ruled then that as they were two separate incidents, the conviction in the criminal court carried no evidential weight as to whether the defendant had been negligent in this case and that if the plaintiff wanted to rely on it, the civil Court would need to look at the facts of the conviction and reach its own decision. I.e that a conviction or finding in another Court did not prove the fact in the second Court.

This was then reviewed by the Law Commission, arising in the Civil Evidence Act 1968, which provides at s.11 that in any civil proceedings the fact that a person has been convicted of an offence by any court in the United Kingdom shall be admissible for the purpose of proving that he committed that offence,

Job done?

Well, no, because the Civil Evidence Act 1984 did not make the same provision for convictions overseas or findings by another Court short of conviction.

However, the Law Reform Committee in its Fifteenth Report (“The Rule in Hollington v Hewthorn”, Cmnd 3391, 1967), did not recommend the abolition of the rule in relation to findings made in civil proceedings, nor its abolition in relation to foreign convictions. At paragraph 17 they said:
“We have restricted our recommendation to convictions by courts of competent jurisdiction in the United Kingdom. We do not include convictions by foreign courts. This is for practical reasons. The substantive criminal law varies widely in different countries. So does criminal procedure and the law of evidence. The relevance of the foreign conviction to the issues in the English civil action could not be ascertained without expert evidence of the substantive criminal law of the foreign country. Its weight could not be judged without expert evidence of the procedural law of the foreign country and reliable information as to the standards of its courts. There are, of course, many countries whose standard of the administration of criminal justice is as high as our own, but there are others in which one cannot be assured of this. It would be invidious to leave the admissibility and weight of a foreign conviction to the discretion of an English judge unfamiliar with the legal system and standards of criminal justice of the foreign country concerned. Furthermore, the burden of showing that a foreign conviction was erroneous would be difficult, perhaps impossible, to sustain, since there would be no way of compelling the witnesses in the foreign criminal proceedings to attend to give evidence in the English courts. The practical effect of making foreign convictions admissible might well be to make them conclusive and the remoter the country in which the conviction took place the more difficult it would be to dispute its correctness”.

So the Court of Appeal had to decide the point – is Hollington v Hawthorne 1943 binding on the family Courts – which means findings from other civil courts or foreign convictions would not be of themselves proof that the matters underlying those decisions were proven

I’ll add that MH had received a 5 1/2 year prison sentence in Spain for his sexual offence against a child, and the Court of Appeal had this to say on the implications of simply ignoring that or demanding that the allegations be proved again in the English courts.

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.

Going on to the law

Conclusions

The rule in Hollington v Hewthorn does not apply in family proceedings as I have defined them because such a rule is incompatible with the welfare-based and protective character of the proceedings.
In family proceedings all relevant evidence is admissible. 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. The court will have regard to all the evidence when reaching its conclusion on the issues before it.
In this case the judge was right to find that the conviction of MH is plainly relevant evidence in these proceedings and that there is no rule of evidence that makes it inadmissible. As Leggatt J said in the civil context of Rogers v Hoyle at [27], 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, where exclusionary rules such as 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.
As I have said, while it might be possible to distinguish the present case from Hollington v Hewthorn on the basis of identity of issues and lack of unfairness to third parties, it is unnecessary to found the analysis on these narrower and more contestable matters that depend on identifying the true ratio of the decision. Nor do I attach special significance to the inquisitorial nature of the proceedings. The important consideration is not that family proceedings are inquisitorial in form but that they are welfare-based in substance.
The outcome is not unfair to the mother. As the judge said, she is not in a position to give evidence that is relevant to the conviction. It is not conclusive and she will have an opportunity to examine any surrounding evidence.
On the basis that the conviction was admissible, the judge was right to admit it. Indeed there could have been no good reason to refuse. She asked whether it was appropriate to depart from Hollington v Hewthorn, but as she had held it to be both inapplicable and distinguishable, the real question was whether there was some other reason to exclude the evidence, and there was none. Accordingly the question of comity is not relevant, while the circumstances of the original finding or conviction and the difficulties of proof in an individual case are matters for the court to keep in mind when it comes to weigh the evidence as a whole.
Once a conviction is admitted it inevitably becomes 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 has no application to the question of how the findings of other tribunals should be treated.
For these reasons, which are similar to those given by the judge, I would reject each of the grounds of appeal and dismiss the appeal.

and Lord Justice Bean said:-

Peter Jackson LJ has given in his judgment a compelling analysis of why a foreign conviction should, as a matter of principle, be admissible and given presumptive weight in proceedings under the Children Act 1989; and why there is nothing in Hollington v Hewthorn which requires us to hold otherwise. I agree with him entirely, and I too would dismiss the appeal.
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.
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.
It is unnecessary for us in this case to decide anything about the admissibility of foreign convictions in English civil courts. In civil proceedings the doctrine of precedent may require this court to follow Hollington v Hewthorn without question, even though in Hunter v Chief Constable of West Midlands [1982] AC 529 at 543 Lord Diplock (with whom the other members of the House of Lords agreed) said that it “is generally considered to have been wrongly decided”. But for my part I suggest that, half a century on, the reasoning in paragraph 17 of the Law Reform Committee’s 1967 report requires re-examination. Either the surviving effect of Hollington v Hewthorn as a whole, or (more narrowly) the question of the admissibility of foreign convictions in English court proceedings, would be a very suitable topic for consideration by the Committee’s successors, the Law Commission of England and Wales, either on a reference by the Lord Chancellor or as part of the Commission’s next Programme of law reform.