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What is the Status of Criminal Finding of Fact in the Family Courts?

Clarity on this matter is provided in the case of Wolverhampton City Council v JA and others.* In this case the Local Authority issued care proceedings in respect of two children aged 13 and 12 years. It was alleged that the children had suffered emotional abuse from the mother and maternal grandmother as well as physical and sexual abuse from the father and two of the mother’s other partners. Criminal proceedings ran alongside the care proceedings, but unexpected delays caused Mr Justice Keehan to undertake a split hearing and only consider the fact finding element at this particular hearing, on 18th August 2017.

In the criminal proceedings, the father was found to be unfit to plead. He was found to lack litigation capacity and Official Solicitor consented to act as his Litigation Friend. Days later the father was detained in accordance with s.2 of the Mental Health Act 1983- admission for assessment of mental health. As a result, by agreement, he did not give evidence in the family proceedings. In the criminal matter, the jury was directed that no verdicts could be returned by the jury which meant the father could not be convicted. As an alternative, under s.4A of the Criminal Procedure (insanity) Act 1964, the jury was directed that they could make findings in respect of the criminal offences- that the father did commit the alleged offences. However, in the case of R v H it was clarified that such findings were not convictions or charges.** Mr Justice Keehan was satisfied that a finding by the jury that the father ‘did the act’ in respect of any count on the indictment is not a ‘conviction’ for the purposes of s.11 (1) and (2) of the Civil Evidence Act 1968.

The family and other civil courts often view criminal convictions to be admissible as proof of any particular finding being sought. If the party, against whom findings are being sought, can prove otherwise, the conviction can become inadmissible under s. 11 of the Civil Evidence Act 1968. However, s.13 of the Civil Evidence Act 1968 strikes a difference between convictions and findings of fact as it mainly discusses the admissibility of evidence against a person who has been convicted and not a person against whom only findings had been made.

In family proceedings ‘the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation”*** is the basis for coming to a decision on findings o f fact. Further, as Mr Justice Keehan could not use the criminal finding of fact as if they were convictions for the purpose of admissible evidence to make findings at the family fact finding hearing, he had to draw his own conclusions from the evidence that he had been presented with:

‘Further and in any event, I had embarked on my consideration of the evidence before the jury returned its verdicts and findings of fact. I propose to continue in the same vein and not to take account of the conviction of or findings of fact made against the father… of whether I make findings of fact in these proceedings as sought by the local authority. If I do so, any finding will be based on the totality of the evidence the court has heard and read during the course of this hearing’^ ‘the father, over a period of years, repeatedly sexually and physically abused X and Y’.^^

Therefore, it is clear that criminal findings of fact are not admissible as evidence of fact in family proceedings; in contrast to criminal convictions.

————————

* Wolverhampton City Council v JA and others [2017] EWFC 62
** R v H [2003] UKHL 1 [16]
***Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141 [26]
^Wolverhampton City Council v JA and others [2017] EWFC 62 [239]
^^Wolverhampton City Council v JA and others [2017] EWFC 62 [282]

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