Re W-A (Children: Foreign Conviction)

In welfare-based family proceedings, the rule in Hollington v Hewthorn [1943] 1 KB 587 does not exclude relevant evidence of an earlier judicial finding or conviction. A domestic or foreign conviction relevant to a person’s suitability to care for children may be admitted, subject to procedural fairness.

The conviction is presumptive proof of the underlying facts, not conclusive proof. A party may establish on the balance of probabilities that it should not be relied upon, and the court must assess all the evidence. The welfare-based substance of family proceedings, rather than their procedural label, is decisive.

The mother’s husband appealed against a High Court ruling in care proceedings under Children Act 1989. The ruling held that his 2011 Spanish conviction for sexual offences against a child was admissible and would carry presumptive weight.

The local authority relied on the conviction when assessing the risk that he posed to the mother’s two children. He accepted the conviction but denied guilt and alleged unfairness in the Spanish process. He contended that Hollington v Hewthorn [1943] 1 KB 587 made the conviction inadmissible, or alternatively left the local authority with the burden of proving the underlying facts without any presumption.

The central issue was whether a foreign criminal conviction is admissible, and if so what evidential effect it has, in family proceedings concerning children.

The appeal was dismissed unanimously.

1. The rule in Hollington v Hewthorn [1943] 1 KB 587 does not apply in family proceedings. Those proceedings are welfare-based and protective. Excluding relevant earlier findings or convictions would conflict with the court’s duty to determine what promotes and protects the child’s welfare.

2. All relevant evidence is admissible in family proceedings. This includes previous judicial findings and convictions, whether domestic or foreign, where they bear upon a person’s suitability to care for children or another issue before the court. The court must nevertheless adopt a procedure that is fair to all parties.

3. The fact-finding element of care proceedings cannot be separated from the welfare decision that it informs. Although proof of the statutory threshold ordinarily depends upon findings made on the balance of probabilities, exclusionary doctrines such as issue estoppel, res inter alios acta and the Hollington rule have no application where they would obstruct the welfare jurisdiction.

4. An admitted conviction is presumptive proof of the underlying facts. It is not conclusive. The affected party may show, on the balance of probabilities, that the conviction should not be relied upon, and the court must reach its decision after considering all the evidence. The circumstances of the foreign process and any practical difficulty in challenging it affect weight, not admissibility.

5. The Spanish conviction was plainly relevant to the risk assessment. There was no other reason to exclude it. The High Court was therefore right to admit it with presumptive weight. The court did not determine the admissibility of foreign convictions in ordinary English civil proceedings.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the admissibility of the Spanish conviction as presumptive proof: [2022] EWCA Civ 1118.
• High Court of Justice, Family Division — Lieven J held on 21 June 2022 that the Spanish conviction was admissible in the care proceedings and would stand as proof of the underlying facts unless rebutted on the balance of probabilities.