Until recently, convictions made in a foreign court couldn’t be used in evidence in a case that was being heard in the UK, but a recent decision made by the Court of Appeal has decided that in cases designed to protect children and which involve an analysis of welfare, rules that previously excluded them should be overturned.
In legal terms, from now on, ‘The fact of a foreign conviction will stand as proof of the facts underlying it, unless that presumption is rebutted on the balance of probabilities.’
Re W-A (children) (foreign conviction)  EWCA Civ 1118,  All ER (D) 25 (Aug)
The decision was made in the context of care proceedings, but the Court of Appeal also made it clear that the same principle should apply to private law, proceedings that relate to children, and welfare cases under the Mental Capacity Act 2005. The judges decided that it would be wrong to ignore a conviction for an offence that was relevant to a decision about what was in a child’s best interests, no matter where the conviction originated from.
It will be up to the party concerned to show that, on balance of probabilities, a previous conviction shouldn’t be relied on, if that is the case. This means that from now on, foreign convictions will be treated in the same way as a conviction in a criminal court in the UK.
The background to the decision about convictions made in a foreign court
The case involved a man who was convicted of sexual abuse by a Spanish court in 2011. He was convicted of abusing an 11-year-old girl who he babysat for in 2008 and sentenced to five and a half years in prison. After his release in 2017, he returned to the UK and, in August 2017, was made subject of an indefinite notification order under the Sexual Offences Act 2003 (SOA 2003).
In October 2020, he met a mother online and moved in with her and her children in January 2021. The local authority began care proceedings and the children were removed and placed in foster care. He married the children’s mother in June 2021.
The man said that although he accepted that he’d been convicted in Spain, he had appealed the case and did not accept that he had been guilty – even though his appeal was rejected by the Spanish courts. He believed that his trial had been unfair and produced documents which he said proved it.
What did the court decide?
The Court of Appeal decided that it had to consider the issue of whether the conviction was admissible as if it were a ‘bare’ conviction and not consider the fact that the husband didn’t consider himself to be guilty. The facts that he’d been convicted of sexual activity with a child and was a registered sex offender made the conviction relevant to the care proceedings, according to Lord Justice Peter Jackson, who said that for the family court to refuse to admit the conviction would be ‘to blind itself to reality’.
Lord Justice Bean agreed, adding,
‘It cannot be right that in such a case the family court in England and Wales deciding issues relating to the welfare of children should have to ignore the conviction and somehow pretend that the relevant party is of entirely good character and that the offences of which he was convicted never happened.’
For more information and advice on family law, contact us at Gillbanks Family Law.