Procedural issues - Should similar behaviour evidence be admitted?

R v P (Children) [2020] EWCA Civ 19088

This case concerned an appeal of a decision to exclude evidence in proceedings dealing with an application for a father’s contact with his children. The children were 5 and 2.

The Mother objected to contact on the grounds that the Father had been abusive towards her by way of controlling behaviour and extreme sexual abuse. The Mother had given examples during the proceedings of the alleged behaviour which included isolating her from her family and friends; making allegations to the police against her family; and insisting on her abandoning her studies.

The Mother sought to rely on evidence within the proceedings that what she alleged was similar to behaviour perpetrated by the Father towards another partner [‘Mrs D’]. Mrs D was involved in Court proceedings in Wales in respect of her own children and a report had been prepared by the Welsh Local Authority which raised significant concerns about the welfare of those children and the relationship between Mrs D and the Father. Following receipt of the report, the Court in Wales ordered that the children be removed from Mrs D’s care and placed with their father Mr D. The Welsh local authority contacted the London local authority about their concerns as ‘it considered the information likely to be relevant to the enquiries of the London local authority.’

In February 2019, the Court in these proceedings ordered that the Welsh reports would be of assistance and that they be disclosed. In May 2019, the Court ordered that the London local authority prepare an updating report taking into account the information from the Welsh reports. In July 2019, the Court recorded that they would not be assisted at a Fact Finding Hearing by the evidence of the author of the Welsh reports. The meaning of this order was disputed and caused significant confusion.

The matter then came before HHJ Jacklin QC in June 2020 as a pre-trial review remote hearing . The Judge was highly critical of the Mother’s solicitors for including the Welsh reports within the Court bundle and took the view that these had been excluded at the July 2019 hearing. The Judge stated that she wouldn’t ‘allow that report to go before the court of fact finding hearing.

Unfortunately, the substantive proceedings were not assisted by a ‘difficult procedural history’ with at least 15 judges hearing the matter; the Mother requiring an intermediary; the parties being separately unrepresented on various occasions; the Court bundle being 1600 pages; and the Fact Finding Hearing being adjourned on five occasions.

The Mother appealed to the High Court and was granted permission to appeal. The appeal was heard at the Court of Appeal urgently due to the upcoming Fact Finding Hearing.

Lord Justice Peter Jackson gave the leading judgment for the appeal. In allowing the Mother’s appeal, he referred to the relevant practice directions; case law; and procedural rules to set out guidance on how the family courts should deal with admissibility of similar fact evidence. The Court set out that the Courts have a broad power to control evidence under the Family Procedure Rules 2010. When looking at similar fact evidence, the evidence must be relevant and admissible. If it is, then the Court must then look at whether it is ‘in the interests of justice for the evidence to be admitted.’ The Court must also be satisfied that, ‘on the basis of proven facts propensity has been proven’ to the civil standard.

The Court of Appeal was clear that, upon applying the above principles, the decision of HHJ Jacklin QC could not stand and that the Welsh reports were relevant and therefore admissible. The proceedings were transferred to the High Court for the Fact Finding Hearing.

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