Evidence

‘Similar Fact’ evidence in family cases

This is a post by Sarah Phillimore.

The case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 is of interest to family lawyers for its technical examination of when ‘similar fact’ evidence should be allowed in family cases.

But it is also of wider interest for how it illustrates what I argue are the primary reasons family cases go off the rails – not because Judges and lawyers ignore or don’t care about issues of violence and coercive control, but because lack of judicial continuity and legal aid inevitably cause chaos.

Background to the proceedings

The parents were in a relationship from 2013 to 2017. After they separated, the father made application for contact. The proceedings soon became a ‘procedural muddle’; there was no judicial continuity, with at least 15 different judges involved, and six attempts at a finding of fact hearing to determine the truth or otherwise of the mother’s allegations. The parties had ‘inconsistent or non existent’ legal representation throughout 2019.

In 2018 the father began a relationship with Mrs D. She was involved in court proceedings in Wales regarding her children and their father, Mr D. The court in Wales ordered a section 37 report which raised serious concerns about her children’s welfare and the nature of her relationship with the father. On the advice of the police, the Welsh local authority contacted the local authority in London who were involved with the father’s contact application.

The report from Wales revealed concerning information about the degree of influence exerted over Mrs D by the father. In December 2018, the court in Wales removed the children from Mrs D’s care and placed them with their father. Mrs D did not engage with the local authority or make any efforts to see her children and the Welsh local authority concluded that the father had behaved in a coercive and controlling way towards Mrs D.
The mother asserted that the Welsh reports showed that the father had subjected Mrs D to the same kind of coercive control that had been directed against her.

By January 2020 the mother had secured legal representation and a three day finding of fact was listed for the summer. There was a pre trial review on June 24th, which was held remotely. There were serious difficulties in connection and the Judge ended up with limited time to consider the issues.

The hearing before the judge

With regard to the Welsh evidence, the Judge took the view that this had been excluded at a July 2019 hearing, and she was very critical of the mother’s solicitors for including this evidence in the court bundle. She pointed out that the reports contained hearsay and the father could not have a fair hearing if the reports were admitted on the assumption they were true.

The mother’s counsel replied that the father would have the opportunity to challenge the report’s contents but the Judge disagreed and was clearly exasperated that it was unclear which witnesses would be coming to court to give evidence. She wanted the fact finding hearing to go ahead. She permitted the mother’s own parents to be called as witnesses, but refused the mother’s application to rely on the reports from the Welsh local authority or the letters provided by Mr D and Mrs D’s parents.

The appeal – analysis of the admissibility of similar fact evidence

The mother appealed. It was argued on her behalf that the Judge was wrong to exclude this evidence as it was highly relevant, both to the fact finding hearing and to any welfare decision. The evidence concerning the father’s relationship with Mrs D and the D children showed a strikingly similar pattern of behaviour to that alleged by the mother. The judge did not consider their relevance at all, nor did she carry out the necessary analytical exercise in relation to admission or exclusion, despite having been referred to the legal principles. She was wrong to have regard only to fairness to the father when exclusion of such significant evidence would be unfair to the mother.

The Court of Appeal considered the relevant procedural rules, practice directions and case law to give general guidance to the approach a court should take when considering the admissibility of similar fact evidence in family cases.

The court has a broad power to control evidence and limit cross examination pursuant to the Family Procedure Rules 2010 para 22. Hearsay evidence is admissible in proceedings concerning children by virtue of the Children (Admissibility of Hearsay Evidence) Order 1993. Part 23 of the Rules includes provisions for the management of such evidence.

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. Paragraph 19 of the Practice Direction contains a list of matters that the court must consider when making directions for a fact finding hearing in a case of this kind, including at paragraph (d) what evidence is required to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse.

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 notes that a focus on recent incidents may fail to acknowledge a pattern of behaviour over a long period of time (page 55) and expresses concern about the limitations of Scott Schedules, which may tend to disguise the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking (page 94).

The need for the court to recognise patterns of behaviour was also discussed by Baker J in Re LG (Re-opening of Fact-finding) [2017] EWHC 2626 (Fam) at [27]

Similar fact evidence in civil cases was discussed In O’Brien v Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534. The court considered the two necessary questions for the court considering similar fact evidence which apply equally to civil and family proceedings.
• To be admissible, evidence it must be relevant i.e. it must be logically probative or disprobative of some matter which requires proof.
• If legally admissible, should it be admitted? This is a more difficult issue and requires an often difficult and sometimes finely balanced assessment as to the significance of such evidence in the context of the case as a whole. There is a possibility that such evidence could place a considerable burden on the party who wishes to challenge it, particularly if it relates to something that happened some time ago; documents may be lost and witness recollections fade.

The similar fact evidence in this case involved ‘propensity’ so the Court of Appeal went on to consider to what extent do the facts relating to the other occasions have to be proved for propensity to be established? That question was answered by the Supreme Court in the criminal case of R v Mitchell [2016] UKSC 55 [2017] AC 571.

In summary, 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.

The Court of Appeal also considered the family case of f Re S (A Child) [2017] EWCA Civ 44, where similar fact evidence was excluded on the basis that evidence about rape of a previous partner had only recently surfaced and the previous partner was not being called to give evidence. However, in the present case, the father was well aware of the allegations against him which were contained in professional reports.

Applying all these principles, the Court of Appeal were unanimous that the judge’s decision to exclude the evidence relating to the father’s relationship with Mrs D could not stand. The hearing had clearly taken place in very difficult circumstances but nevertheless, the necessary analysis required to determine the admissibility of the evidence was not carried out.

The ‘procedural muddle’

This is worthy of further consideration, which is set out at para 10 of the judgment. Perhaps most astonishingly was the role played by Mrs D as ‘MacKenzie friend’ to the father. It is difficult to understand how the court felt that could be appropriate in all the circumstances of this case.

Returning to the proceedings concerning these children, the issue of the admission of evidence relating to the father’s relationship with Mrs D was played out in an unsatisfactory way against the background of repeated attempts to hold a fact-finding hearing.  In brief, the issue arose at four hearings before the one with which we are concerned on this appeal:

(1) In February 2019, the court ordered the mother’s solicitors to write to the court in Wales seeking disclosure of the two reports of the Welsh local authority and recited that the court was of the view that those reports would be of assistance in the current proceedings.  The father was absent from that hearing.

(2) In May 2019, a deputy district judge directed the updating section 7 report from the London local authority in order to take account of the contents of the Cardiff reports, which had by then been received.  The mother was unrepresented.  The father sought a direction for the attendance of KS and she was invited to attend, though the court indicated that the fact-finding hearing would go ahead in any event.  The non-molestation order against the father was extended.  The father’s application for a continued non-molestation order against the mother (transferred from the North-West in February) was dismissed as being without merit. 

(3) In July 2019, the parties appeared before the same deputy district judge.  The mother was unrepresented.  The order recorded that the court would not be assisted at the fact-finding hearing by the evidence of KS.  What was meant by this was obscure until an email was discovered during the course of this appeal which showed that the father’s former solicitors had stated that they did not require the attendance of KS.  Until then, the meaning of the order was disputed, it being suggested on behalf of the father that it showed that the court had excluded the Welsh reports.

(4) In September 2019, when the matter came before a  district judge, both parents were unrepresented, with the father, bizarrely, being allowed to have Mrs D as his ‘MacKenzie friend’.  The court recorded that the mother had sought permission to rely on the Welsh reports but that permission was refused on the basis that it had been refused at the July hearing and that nothing had changed.

Without judicial continuity, legal representation for parents, speedy fact findings and robust enforcement these cases are doomed from the outset and it doesn’t matter how many ‘Inquiries’ the MoJ hold or how many campaigners insist on further expensive training for Judges. Denial of this obvious truth is magical thinking at its finest and I grow very tired of it.

Evidence and Admissions made in the Family Court – what happens if the police are interested?

Section 98 of the Children Act

The purpose of this section is to encourage parents to speak openly and honestly in the family court about what happened to their child. It is supposed to provide them with safeguards against the involvement of the police who might want to prosecute them for criminal offences if they admit to, or the family court finds they have, hurt their children.

However, the situation is very complicated for even experienced lawyers to understand and it seems that it would be risky for any family lawyer to attempt to reassure their client that information or admissions contained in family proceedings will stay there.

98 of the Children Act 1989 provides that:

1. In any proceedings in which a court is hearing an application for an order under Part IV and V, no person shall be excused from-

A. giving evidence on any matter; or

B. answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

2. A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.

I tried to provide a ‘translation’ of this in this post. 

Attempt at Plain English Version: No guarantees of confidentiality can be given by the family court.

The judge should give a warning in the following terms when a parent is being questioned about causing harm to a child:

  • I need to explain a rule of law to you. Its important you understand this. Your lawyer can explain it further to you, it is their duty to do so.
  • allegations are made against you in these family proceedings. The family court is not involved in any decisions made in the criminal courts about whether you should be found guilty or acquitted of any criminal offence.
  • However, in these family proceedings, the court will have to decide whether or not the allegations made against you are true. If they are found to be true, this would mean you have done something which may also be a criminal offence.
  • in the family proceedings you aren’t allowed to refuse to answer questions or provide evidence in writing on the basis that your answers might show you or your spouse had done something criminally wrong.
  • If you do give evidence that suggests you have done something criminally wrong, this evidence is NOT allowed in any criminal proceedings against you UNLESS you are being prosecuted for perjury (i.e. you have lied on oath in the family court).
  • BUT you must understand that if the family court gives permission that ANYTHING you say or write down for these proceedings may be given to the police for them to use during their investigations into your conduct AND if you did end up in a criminal court, the prosecution might make an application for permission to ask you questions about anything you said in the family court.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam) about the impact of section 98:

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

Some important points

Automatic disclosure of judgments under Rule 12.73

Rule 12.73 of the FPR 2010 and PD 12G mean any party has an automatic right to disclose to police/CPS whole or part of a judgment in a family case for the purpose of a criminal investigation or to enable the CPS to discharge its functions. BUT neither police nor the CPS can disclose the judgment or the information it contains  to any person without the permission of the family court judge.

Factors set out in Re C 1996

The leading authority remains  Re C sub nom Re EC [1996] 2 FLR 725 CA The court set out the following matters which a judge will consider when deciding to let the police have information from the family court. Each case must be decided on its merits and the importance of these factors will vary from case to case. The case also predates the shift in attitudes towards more openness in family proceedings and the impact of Articles 8 and 10 of the ECHR and the Human Rights Act 1998, so will need to be seen in that context.

  • The welfare and interests of the child or children concerned in the care proceedings. If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor.
  • The welfare and interests of other children generally.
  • The maintenance of confidentiality in children’s cases.
  • The importance of encouraging frankness in children’s cases. The underlying purpose of s 98 is to encourage people to tell the truth in cases concerning children, and the incentive is that any admission will not be admissible in evidence in a criminal trial. But the incentive of guaranteed confidentiality is not given by the words of the section.
  • The public interest in the administration of justice. Barriers should not be erected between one branch of the judicature and another because this may be inimical to the overall interests of justice.
  • The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children. There is a strong public interest in making available material to the police which is relevant to a criminal trial. In many cases, this is likely to be a very important factor.
  • The gravity of the alleged offence and the relevance of the evidence to it. If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order.
  • The desirability of co-operation between various agencies concerned with the welfare of children, including the social services departments, the police service, medical practitioners, health visitors, schools, etc. This is particularly important in cases concerning children.
  • In a case to which s 98(2) applies, the terms of the section itself, namely, that the witness was not excused from answering incriminating questions, and that any statement of admission would not be admissible against him in criminal proceedings. Fairness to the person who has incriminated himself and any others affected by the incriminating statement and any danger of oppression would also be relevant considerations.
  • Any other material disclosure which has already taken place.

 

A parent who confesses

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014]. This case involved a parent who confessed to causing a serious injury to a child. This confession came AFTER a fact finding hearing where the Judge couldn’t decide which parent hurt the child. On giving judgment the Judge commented that it would be possible to rehabilitate the child back to the family if the perpetrator gave a full and frank account.  The father confessed to causing the injury 2 days later and the parents separated. The children went back to their mother and Baker J gave a further judgment, exonerating the mother of causing harm.

The Father then applied for an order to stop any of this information being sent to the police/CPS. The police had by now closed their file on the case. The police cross applied to see the information about the confession so they could decide whether or not to prosecute the father. Baker J allowed the police and CPS to see the judgments but with limits on their use; they could not discuss the contents of the judgments with either parent without the court’s permission.

At para 22, Baker J considered the question of whether the father’s confession could be used in criminal proceedings – was he protected by section 98? It is for the criminal courts to decide if a admission could be used as evidence within the criminal trial or whether section 98(2) provided protection but noted that he knew of no reported case where section 98(2) has been considered by the criminal courts. In the family court, such confessions have been used to ‘shape the nature and range of the inquiries’ the police undertake [Oxfordshire CC v P [1995] 1 FLR 797].

Therefore, the police can ask a suspect about his previous confession in a further interview. If the suspects admits it was truthful, that could be evidence admitted into his criminal trial. However, being questioned in a police interview in this way runs a serious risk that any protection offered by section 98 would be nullified – as recognised by the court in Re M [2001] 2 FLR 1316.

There is – as yet – no judicial answer to the question raised in Re X &Y as to whether a suspect’s confession could be raised in a criminal trial as a ‘previous inconsistent statement’ pursuant to s119 of the Criminal Justice Act 1993.

This seems to be the worst of all worlds. Of course the police are going to be interested in a confession or an adverse judgment. Of course they are going to want to rely on it and ask questions about it. It does seem that the practical use of section 98 has been considerably eroded.

 

Liz Ingham comments:

It seems a shame, particularly in a climate where the police and CPS appear to await the outcomes of fact finding hearings before deciding on whether to prosecute and where there is sometimes inordinate delay in criminal trials being heard, that the laudable aim of section 98(2) to encourage frankness in the family courts is being eroded by the spectre of criminal proceedings waiting in the wings.

The section was put there for a purpose – if it was not to provide a complete shield for parents who are frank in children cases in order to encourage them to be so, what was the point of it? Is it right to leave the amount of protection it provides to a parent to be determined in the criminal courts where there is no necessity to consider the factors which may compete against the criminal jurisdiction’s perception of fairness such as the need to preserve the integrity of the family justice system as a whole in providing swift and child focused justice? Would it not be better to have children returned home to one parent quickly following being injured by the other parent than to be removed from their birth family for months at best (pending a fact finding hearing) and for life at worst (due to both parents remaining in the pool of perpetrators) even if the price for that were that the guilty parent escaped criminal prosecution? For the children in Re X & Y, perhaps it was fortunate that Baker J did not give the warning under section 98(2). It might have discouraged the Father from being frank and the children would have remained separated from both of their parents.

 

 

Further Reading