R v P (Children: Similar Fact Evidence)

Evidence of similar conduct by a party is admissible in family proceedings where it is relevant to show propensity or a pattern of coercive or controlling behaviour, but admission remains a case management exercise: the evidence must be logically probative and, if so, the court must balance its probative value against unfairness, prejudice and practical burden before admitting it.

The appellant mother appealed a case management decision which excluded professional reports and witness letters containing material from third-party proceedings concerning the father's similar behaviour towards another partner. The contested material comprised Welsh local authority reports, a second London section 7 report and letters from the other partner's family and former partner. The Court of Appeal allowed the appeal, concluded the material was relevant and should be admitted for a fact-finding hearing, and transferred the case to High Court level for case management and a fact-finding hearing.

1. Disposition. The appeal is allowed; the judge's order excluding the Welsh reports, the second London local authority report and the letters is set aside. The case is reallocated to High Court level for case management and a fact-finding hearing.
2. Legal framework. The Family Procedure Rules give the court broad powers to control and, where appropriate, to exclude evidence (see Family Procedure Rules 2010 Pt 22). Hearsay is admissible in children proceedings under the Children (Admissibility of Hearsay Evidence) Order 1993. Practice Direction 12J requires consideration of what evidence is needed to determine coercive or controlling behaviour.
3. Relevance and admissibility of similar fact evidence. The O'Brien v Chief Constable of South Wales Police [2005] UKHL 26 approach governs: first ask whether the evidence is relevant (logically probative of a matter requiring proof); if it is, it is legally admissible. Second, the court must exercise case management judgment whether to admit it, weighing probative value against risks of unfair prejudice, distraction, burden and other practical considerations.
4. Propensity and proof. Principles from R v Mitchell [2016] UKSC 55 apply with adjustment to the civil standard: propensity may be established by considering similar incidents in the round; it is unnecessary to prove each incident beyond doubt but the court must be satisfied, on the civil standard, that proven facts suffice to establish propensity.
5. Application to the present case. The judge below did not undertake the required analytical exercise and misunderstood the procedural history; there had been no prior order removing the Welsh reports. The contested material is relevant and admissible and, on balance, should be admitted in the interests of justice because it may be capable of establishing propensity probative of the core allegations. Whether propensity is in fact established is for the fact-finding judge.
6. Practical directions. The Court emphasises the need for close case management to ensure the material is presented fairly to both parties. The matter is reallocated to High Court level and a case management hearing is directed prior to the fact-finding hearing.

• Court of Appeal (Civil Division): allowed the mother's appeal, set aside the case management order excluding the Welsh reports and related material, and reallocated the proceedings to High Court level for case management and a fact-finding hearing.
• High Court: Cohen J granted permission to appeal and allocated the appeal to the Court of Appeal pursuant to FPR 2010 r.30.13 (permission granted 28 July, as recorded in the judgment).