R v P (Children: Similar Fact Evidence)

Similar fact evidence in civil and family proceedings is admissible if, assumed provisionally to be true, it is logically capable of making a matter requiring proof more or less probable. The court must then decide whether admission serves the interests of justice. This requires a fair balance between the evidence’s potential significance and any collateral dispute, prejudice, delay, cost or forensic burden.

Where evidence is relied upon to establish a propensity, the court must find the propensity proved on the civil standard from a sufficient body of proven facts. It need not find every individual item of supporting evidence proved. In domestic abuse cases, case management must allow the court to examine alleged patterns of coercive or controlling behaviour without overlooking significant evidence.

The father applied in the Family Court for contact with two children. The mother alleged that he had subjected her to coercive and controlling behaviour and sexual abuse. She sought to rely on local authority reports and evidence describing allegedly similar behaviour by the father towards a later partner and her children.

HHJ Jacklin QC excluded that evidence during a case management hearing. The mother appealed to the High Court. Cohen J granted permission and assigned the appeal to the Court of Appeal under rule 30.13 of the Family Procedure Rules 2010.

The central issues were whether the evidence was relevant as evidence of propensity and, if so, whether the interests of justice required its admission.

1. Appeal allowed unanimously. The order excluding the disputed evidence was set aside. The necessary analysis had not been carried out, and the judge had misunderstood the earlier procedural history. The proceedings were reallocated to High Court level for case management and a fact-finding hearing.

2. Similar fact evidence in civil and family proceedings is governed by two questions. First, the court asks whether the evidence, assumed provisionally to be true, is relevant because it may make a matter requiring proof more or less probable. Relevant evidence is legally admissible. Secondly, the court determines whether admission is in the interests of justice. That exercise balances its potential significance against distraction by collateral issues, unfair prejudice, delay, cost, evidential difficulties and other burdens. The overriding objective is a process that is fair to all parties. The analysis in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 was applied.

3. Where several incidents are relied upon to establish propensity, the court must decide whether the propensity has been proved overall. In family proceedings, that question is determined on the civil standard. The proven facts must provide a sufficient foundation for the finding, but every individual item of evidence need not itself be proved. The incidents may be evaluated together and may inform or corroborate one another. The reasoning in R v Mitchell [2016] UKSC 55 was applied with the necessary adjustment to the standard of proof.

4. Domestic abuse may consist of a harmful pattern rather than isolated incidents. When controlling the evidence and defining the scope of a fact-finding hearing, the court must take care that concentration on selected incidents does not conceal a pattern of coercive or controlling behaviour. The evidence in this case was capable of establishing a propensity relevant to the core allegations.

5. The Welsh local authority reports, the second London local authority report and the evidence from the later partner’s former husband and parents were relevant and admissible. Their admission served the interests of justice. Whether they established propensity, and what probative value any propensity had, remained for the trial judge. Close case management was required to ensure fairness to both parties.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously, the exclusion order was set aside, and the proceedings were reallocated to High Court level for case management and a fact-finding hearing: [2020] EWCA Civ 1088.

2. High Court: Cohen J granted permission to appeal and assigned the appeal to the Court of Appeal under rule 30.13 of the Family Procedure Rules 2010.

3. Family Court: HHJ Jacklin QC excluded the local authority reports and related evidence from the proposed fact-finding hearing. No neutral citation is stated.