A LOCAL AUTHORITY v M & Ors

In care proceedings under Part IV of the Children Act 1989, a foreign criminal conviction may be admitted as evidence of the underlying facts where the facts decided in the criminal proceedings are identical to those relevant in the care case. The rule in Hollington v Hewthorn does not prevent that approach where the proceedings are quasi-inquisitorial, concern the protection of children, and the convicted person was a party to both proceedings. The conviction is not binding. The convicted person may challenge the underlying facts and the fairness of the foreign process. Where the conviction is admitted as evidence of the facts, the burden lies on the convicted person to displace it on the balance of probabilities.

The local authority issued care proceedings under Part IV of the Children Act 1989 concerning two children. The children’s mother lived with E, her husband, who was not their father. E had been convicted by a Spanish court of sexual offences against an 11-year-old girl and did not accept either the underlying conduct or the fairness of the Spanish proceedings.

The convictions were central to the local authority’s threshold case. The interlocutory issue was whether the convictions were admissible as evidence that E had committed the offences, or whether the rule in Hollington v Hewthorn excluded them.

1. The Spanish convictions were admissible as evidence of the underlying facts. The court was not bound by Hollington v Hewthorn in the circumstances of the case.

2. Part IV care proceedings differ materially from the inter partes litigation considered in Hollington. They have a public protective purpose, the court has a quasi-inquisitorial role, and the child’s welfare is a highly material consideration even though it is not paramount at the case-management stage. Relevant evidence will rarely be excluded.

3. Hollington was also distinguishable because the facts underlying the Spanish convictions were identical to the facts relevant to the local authority’s threshold case. No additional issues, such as contributory negligence, had to be determined.

4. The concern that a person should not be adversely affected by findings made in proceedings to which they were not a party did not arise in respect of E. He had participated in the Spanish proceedings and was a party to the care proceedings. The mother was not bound by findings against E.

5. The court considered that the modern safeguards applicable to criminal justice systems in Council of Europe States, together with principles of comity, justified departing from the approach in Hollington. The convictions were not binding, however. E remained entitled to give evidence that he had not committed the offences and that the criminal process was unfair.

6. Since the convictions were admissible as evidence of the underlying facts, the burden of displacing them lay on E. The presumption that the convictions were valid was rebuttable on the balance of probabilities.