W-A (Children : Foreign Conviction)

Factual and Procedural Background

This appeal arises from care proceedings concerning two girls aged 16 and 11. The Appellant is the mother's husband ("MH"). The appeal challenges a ruling by Mrs Justice Lieven that MH's conviction for sexual offences against a child in a Spanish court is admissible in the care proceedings as evidence with presumptive weight. The ruling means the foreign conviction is treated as if it were a conviction from a UK court, standing as proof of the facts underlying it unless MH rebuts this on the balance of probability.

MH was convicted in Spain in February 2011 for sexual abuse of an 11-year-old girl, receiving a 5½ year prison sentence and was released in February 2017. Upon return to the UK, MH was subject to an indefinite notification order under the Sexual Offences Act 2003 due to his foreign conviction. In June 2019, he was convicted in the UK for failing to comply with this notification order.

MH met the mother online in October 2020 and moved in with her and her children in January 2021. Following this, the local authority began care proceedings in February 2021, resulting in interim care orders and placement of the children in foster care. MH was joined as a party to the proceedings in August 2021. The admissibility of the Spanish conviction was raised only in April 2022, leading to a High Court hearing and judgment in June 2022.

Legal Issues Presented

1. Whether the Spanish conviction is admissible as evidence in the UK family care proceedings with presumptive weight.
2. Whether the rule in Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587, which generally excludes foreign convictions as evidence, binds the court to exclude the Spanish conviction.
3. If admissible, whether the burden of proof remains on the local authority or shifts due to presumptive weight of the conviction.

Arguments of the Parties

Appellant's Arguments

• The rule in Hollington v Hewthorn is binding and requires exclusion of the Spanish conviction as evidence.
• The judge wrongly gave weight to considerations of comity and evidential difficulty faced by the local authority when deciding admissibility.
• If the conviction is admitted, it should carry no presumptive weight; the burden of proof should remain on the local authority, treating the conviction as merely one piece of evidence.
• MH contends the trial in Spain was unfair and denies guilt despite the conviction.

Mother's Arguments

• The conviction should be admissible but should not be equated with a domestic conviction.
• The burden of proof should remain on the local authority due to potential miscarriage of justice concerns.
• The mother has an important interest in the outcome and seeks assurance the conviction was not wrongful.

Local Authority's Arguments

• The ruling below should be upheld; Hollington v Hewthorn was never intended to apply in child protection cases.
• Statutory provisions, including the Rehabilitation of Offenders Act 1974 and Children Act, indicate Parliament's intention to treat foreign convictions as admissible in children’s cases.

Children's Guardian's Arguments

• Endorses the local authority's submissions.
• Highlights statutory amendments requiring notification for those convicted of sexual offences abroad, supporting admissibility.
• Notes the anomaly if child protection legislation does not apply equally to children in family proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587	Exclusion of foreign convictions as evidence in civil proceedings; the conviction is inadmissible because the issues differ and it cannot be known what weight to attach without retrial.	The court distinguished this precedent as not binding in family proceedings due to their welfare-based nature and quasi-inquisitorial process, allowing foreign convictions to be admissible with presumptive weight.
Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117	No strict issue estoppel in family proceedings; court has discretion to retry facts.	Confirmed that previous findings are admissible but not necessarily binding; relevant to the approach to previous convictions or findings.
Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5	Family proceedings are quasi-inquisitorial but adversarial in fact-finding.	Supported the view that burden of proof lies with the party seeking findings but within a welfare context.
Rogers v Hoyle [2013] EWHC 1409	Exclusion of opinion evidence and the rationale for independent judicial assessment.	Supported reasoning that courts should evaluate evidence rationally and exclusionary rules like Hollington do not apply in family proceedings.
Director of the Assets Recovery Agency v Virtosu [2008] EWHC 149	Admissibility of foreign convictions where they prove identical issues in English proceedings.	Distinguished Hollington where foreign conviction proves the same matter; relevant to admissibility in this case.
Caylon v Michailaidis [2009] UKPC 34	Foreign judgments are inadmissible unless the second court examines the facts itself.	Used to explain the rationale behind Hollington and limits on admissibility of foreign convictions in civil proceedings.
Hoyle v Rogers [2014] EWCA Civ 257	Reaffirmed the principle that findings of fact by another decision-maker are irrelevant to the trial judge.	Supported the rejection of Hollington’s applicability in family proceedings based on fairness and trial assessment principles.
Richardson-Ruhan v Ruhan [2017] EWHC 2739 (Fam)	Consideration of foreign convictions in financial remedy proceedings.	Referenced as an example where foreign convictions were considered admissible in family-related proceedings.
Bailey v Bailey [2022] EWFC 5	Rejected submission requiring ignoring a decision in committal proceedings based on Hollington.	Indicative that Hollington does not apply rigidly in family jurisdiction.

Court's Reasoning and Analysis

The court began by considering the welfare-based purpose of family proceedings, emphasizing that all relevant evidence must be admitted to protect children effectively. The court acknowledged the traditional rule in Hollington v Hewthorn excluding foreign convictions as evidence in civil proceedings due to concerns about relevance and fairness but held that this rule does not apply in family proceedings because:

• Family proceedings are fundamentally welfare-based and quasi-inquisitorial, differing from civil proceedings.
• The foreign conviction here concerns the identical factual issue as the care proceedings (whether MH poses a sexual risk to children).
• The court has a duty to consider all relevant evidence to protect children, and excluding the conviction would impair this duty.
• There is no unfair prejudice to third parties that would justify exclusion.
• Statutory provisions and amendments (e.g., Sexual Offences Act 2003, Rehabilitation of Offenders Act 1974) support treating foreign convictions as admissible evidence in children’s cases.

The court further reasoned that admitting the conviction with presumptive weight is appropriate, as it allows MH to rebut the presumption on a balance of probabilities, preserving fairness. The court rejected the appellant’s argument that the conviction should be "just another piece of evidence" without presumptive weight, noting that admitting it without such weight would be nonsensical.

The court also analyzed the Hollington rule’s rationale—concerns about relevance, fairness, and inability to assess the weight of foreign convictions without retrial—and found these concerns mitigated or inapplicable in the family context, especially where the issues are identical and the foreign conviction is highly relevant.

Lastly, the court noted that although the Hollington rule remains binding in civil proceedings, its application in family proceedings is incompatible with the statutory framework and welfare objectives.

Holding and Implications

The court’s final decision is to DISMISS THE APPEAL.

The holding confirms that foreign convictions, where relevant to family care proceedings, are admissible as evidence with presumptive weight. This means such convictions stand as proof of the underlying facts unless rebutted on the balance of probabilities. The decision emphasizes the primacy of child welfare over strict evidentiary rules that apply in civil cases and affirms the court’s discretion to admit and weigh evidence in a manner consistent with the protective purpose of family law.

The ruling does not establish a new precedent for civil proceedings but clarifies the evidential approach in family proceedings, reinforcing that exclusionary rules like Hollington v Hewthorn do not apply rigidly in the welfare jurisdiction. The direct effect is that foreign convictions relevant to child protection can be relied upon in care proceedings subject to rebuttal, ensuring courts can consider the full context in safeguarding children.