W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118

A decision concerning the admissibility of foreign convictions in family proceedings in England and Wales has been handed down by the Court of Appeal. Mrs Justice Lieven had determined that the appellant’s conviction for offences in Spain could be relied upon by the local authority as proof of the truth of the underlying facts.  The appellant appealed.  The Court of Appeal noted that the question of the admissibility of a foreign conviction has not previously arisen in family proceedings.

The far-reaching judgment is applicable not only to Part IV proceedings but also in a private law case under Part I, cases under the inherent jurisdiction relating to children, and welfare case under the Mental Capacity Act 2005.

The Court of Appeal has clarified that “the characteristics of family proceedings … speak strongly against the existence of artificial evidential constraints that may defeat the purpose of the jurisdiction”.  Thus, “the rule in Hollington v Hewthorn does not apply in family proceedings … because such a rule is incompatible with the welfare-based and protective character of the proceedings” and that “in family proceedings all relevant evidence is admissible. Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person's suitability to care for children or some other issue in the case, the court may admit them in evidence”.

Andrew Norton QC was instructed for the third respondent children and Sam Momtaz QC was instructed for the second respondent mother.

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