A mother recently won an appeal from a case management decision to exclude similar fact evidence in private family proceedings, ahead of a fact-finding hearing. The issues apply to public law cases as well, writes Hazel Samuriwo.
The case of R v P (Children: Similar Fact Evidence)  EWCA Civ 1088 concerns two children aged 5 and 2. Father made an application for contact in October 2017. Mother applied for a NMO in Nov 2017 which was obtained and remains to date. The allegations that the mother made in support of that order and in opposition to the father's contact application included allegations of coercive and controlling behaviour by the father [see Para 5]. The mother sought to rely upon evidence from Welsh local authority’s s37 reports which raised considerable concerns about the nature of the relationship between the father and Mrs D and the welfare of Mrs D’s children. M’s case was that the evidence demonstrated that the father had behaved in a coercive and controlling way towards Mrs D and was relevant to her case .
Decision of the earlier Court
This case had been before at least 15 judges. Due to lack of judicial continuity and inconsistent or non-existent legal representation, and after several hearings, it was directed by the latest Judge that the Welsh reports, and evidence from Mr D and Mrs D’s parents would be inadmissible at a fact finding hearing, although the reports had remained in the court bundle for over a year. The Judge was very critical of the Mother’s solicitors for retaining the evidence in the bundle, and directed its removal on the basis that the evidence contained hearsay and that the father could not have a fair trial if the evidence was admitted on the assumption that everything in there was true. The fact-finding hearing was directed to begin on 17 August 2020.
On appeal the Court of Appeal held, Lord Justice Peter Jackson giving the lead judgment:
The Court sympathised with the judge on the basis that a case that was in such evident disarray was bound to cause a judge coming to it for the first time real concern. However, His Lordship considered that the judge’s criticism of the mother's solicitors was based on a misunderstanding of the procedural history.
Allowing the Mother’s appeal, the court held that:
- The court has a broad power to control evidence under the Family Procedure Rules 2010 (FPR 22)
- Hearsay evidence is admissible in proceedings concerning children by virtue of the Children (Admissibility of Hearsay Evidence) Order 1993
- Practice Direction 12J applies when it is alleged or admitted or there is other reason to believe that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse
- The definition of domestic abuse as consisting of acts or a pattern of acts is an acknowledgement that some forms of abuse do not consist of isolated individual incidents, but of harmful patterns of behaviour. This issue is underlined in the final report of the expert panel to the Ministry of Justice in June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases.
- At Para 23, and referring to O’Brien v Chief Constable of South Wales Police  UKHL 26;  the court held there are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind.
1. Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible.
2. Secondly, is it in the interests of justice for the evidence to be admitted? This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O’Brien.
- Where the similar fact evidence comprises an alleged pattern of behaviour, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.  R v Mitchell  UKSC 55  AC 571, applied where it was said that the defendant, who was charged with murder by stabbing, had used knives on a number of other occasions, none of which had led to a conviction but which on the prosecution’s case showed propensity
- S (A Child)  EWCA Civ 44 a case where similar fact was held inadmissible distinguished. This was on basis that the evidence although it was potentially relevant but it would have been unfair to have allowed the mother to have relied upon the alleged rape of a previous partner in circumstances where the material had only very recently surfaced as part of the mother's case, that the previous partner was not being called, and that it would be unfair to the father to explore the allegation with him on the basis of the paper evidence alone 
- In the present case, the father had been aware of the allegations for well over a year and the allegations were contained in professional reports that the court itself had directed should be gathered 
- The evidence should be admitted in the interests of justice. The Judge’s order set aside. The case was reallocated to High Court level ‘because of the history of the case and the importance of the underlying issues’
As well as outlining the rules that apply when a party seeks to rely on similar fact evidence in civil and family proceedings, this judgment also highlights the importance of judicial continuity.
Hazel Samuriwo is In-House Advocate, London Borough of Brent.