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Can Similar Fact Evidence Be Used in Children Proceedings?

on Monday, 07 September 2020.

The case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 considered whether the mother, who objected to the father having contact with their children, could adduce evidence that the father also subjected a new partner...

...(Mrs D) to the same coercive control as she had suffered.

The Court initially refused, however permission was later granted and the matter was referred to the Court of Appeal.

The Facts

The mother and father were in a relationship from 2013 to 2017. They had two children, aged five and two years. The father made an application to the court for contact with his children, however the mother objected on grounds that the father had subjected her to serious abuse, including rape.

The father began a new relationship in 2018 with Mrs D. Mrs D had children of her own and was involved in child arrangement proceedings in Wales with her former partner. In the context of her proceedings, a section 37 report was prepared which identified welfare concerns about her children as a result of coercive and controlling behaviour by the father. This resulted in Mrs D's children being removed from her care and placed in the care of their father. Mrs D did not engage nor try and see her children and it was concluded that this was as a result of coercive control from the father.

The section 37 report was shared with the Local Authority in London (dealing with the mother and father's case) and this was shared with the mother. The mother sought to include this evidence as it showed that the father coercively controlled Mrs D in the same way that he had done to her. The mother was also in receipt of letters from Mrs D's parents which identified the same concerns.

PC coronavirus

Could the Report Be Used As Evidence?

The judge concluded that the section 37 report contained hearsay and that the father could not have a fair hearing if the evidence was included. Therefore, the mother was not allowed to use it.

The Appeal

The mother appealed this decision. The mother argued that it was relevant as it demonstrated a similar pattern or a "propensity" to display this behaviour. The appeal judge agreed with the mother and in doing so considered the appropriate test and held that the evidence was both admissible and relevant and that it was in the interests of justice for it be admitted. The judge concluded that the court should, when using its wide powers, consider the following:

  • Is the proposed evidence relevant and admissible? (ie it must logically prove or disprove some particular aspect of the case)
  • What is the impact of the introduction of the evidence and is it reasonable and proportionate to allow it? Consideration will be given to the evidence in the context of the case as a whole.

The judge also considered the case of R v Mitchell [2016] which considered the issue of propensity when assessing similar fact evidence. In this case, the court concluded that it must be satisfied on the balance of probabilities that on the basis of proven facts, propensity has been proven. The proven facts must form a sufficient basis to sustain a finding of propensity, however, each individual item of evidence does not have to be proved.

Our Advice

As identified, the court has wide discretionary powers when considering matters such as those raised in this case. Whilst these matters may not be relevant or appropriate to your case, it is important that you do highlight these to your lawyer so they can consider if they need to be adduced as evidence.

VWV has a specialist team of family lawyers advising clients nationally and internationally on family related matters.

If you need any advice in relation to the your child arrangements please contact Sam Hickman in our Family Law team on 07464 544 828, or complete the form below.

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