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.