R v P: Mother allowed to adduce similar fact evidence of father's abusive behaviour

Photo by Timo Volz on Unsplash

Similar fact evidence is a rare bird in family proceedings, at least in my limited experience (that's my excuse for using the above image!), so when a Court of Appeal decision on the subject crops up, it has my immediate attention.

The decision, handed down today, was in the case R v P (Children: Similar Fact Evidence). Lord Justice Peter Jackson, giving the leading judgment, explains what it was about:

"This is an appeal from a case management decision to exclude evidence in family proceedings. The proceedings are a father's application for contact with children now aged 5 and 2. The mother opposes contact on the basis that the father had subjected her to extreme coercive and controlling behaviour and to sexual abuse, including rape. In support of her case, she wants to rely on evidence of what she argues is strikingly similar coercive and controlling behaviour by the father towards another woman, with whom he began a relationship shortly after her relationship with him ended. It was that evidence that was excluded."

We are then told that the appeal was allowed, and that the contested evidence would be reinstated.

For the purpose of this brief summary I don't need to set out the background or, indeed, details of the evidence that the mother sought to adduce. I will simply 'cut to the chase' of why the appeal was allowed.

Jackson LJ explained:

"There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind. Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted?"

The Court of Appeal was in no doubt that the evidence was relevant, and therefore admissible. The judgment does not give an explanation of this finding, merely relying upon an earlier exposition of the law on similar fact evidence. That exposition made it clear that evidence is relevant if it is logically probative or disprobative of some matter which requires proof, in this case the father's pattern of behaviour.

Jackson LJ was also in no doubt that the evidence should be admitted in the interests of justice - it would be for the court to determine whether the evidence was capable of establishing propensity that may be of probative value in relation to the core allegations in the case.

An interesting little judgment, which may prove useful to others who have suffered abuse and are aware that they weren't the only victims of their abusers.

You can read the full judgment here.