Family Law: When can you rely on similar fact evidence?

October 1, 2020

Child arrangements orders

When you are going through a divorce, separation, or your civil partnership is coming to an end, it may be difficult to agree the arrangements for your children to have contact with each parent. If you are unable to agree, you may need to make an application to the court for a child arrangements order.

Depending on your circumstances, you can ask the court to decide where your children should live, when they spend time with each parent, and the other types of contact that can take place with the other parent. Your application will include evidence in support of your case, such as why your children should have limited or no contact with the other parent.

Facts

In the case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, the father applied to the court for a child arrangements order. The mother attempted to rely on evidence about the father’s similar relationship with his current partner to support her case that he had behaved in a coercive and controlling manner towards her; and therefore should not have contact with their two children. This is called similar fact evidence.

Principles

The mother appealed against the similar fact evidence being disregarded when the court was considering the father’s application. The Court of Appeal provided the following guidance about when similar fact evidence is relevant to a decision:

• The court must consider whether the evidence is admissible, which means that the court allows it to be considered as part of its decision-making process. To decide whether the evidence is admissible, the evidence must be relevant to prove or disprove an issue.
• If the evidence is admissible and therefore can be considered by the court, the court asks whether it is in the interests of justice for the evidence to be relied on when making its decision. In order to do this, the court weighs up how significant the evidence would be if it were true, how helpful the evidence would be compared to the prejudice it may cause to the other party, and ensures that the process for achieving justice is fair to all parties.

Decision

When a party seeks to rely on similar fact evidence to show a pattern of behaviour, they are implying that the allegation they have made is more likely to be true because of the party’s previous behaviour which shows that they are inclined to behave that way.

The court must be satisfied that the inclination to behave a certain way is proven against the civil burden of proof, which is on the balance of probabilities the allegation was more likely than not to have happened. The court does not need to prove each piece of evidence.

In this case, the evidence about the father’s behaviour was relevant and therefore admissible as evidence and should have been considered by the court when deciding if the father should have contact with the two children.

If you make an application for a child arrangements order, you may include examples of the other parent’s past behaviour to show that they have behaved, or are more likely to behave, a certain way in the future. The court will then need to consider whether this should be reviewed when making a decision about contact arrangements. Wallace Robinson & Morgan is happy to help if you would like advice about applications for child arrangements orders. If you would like to discuss your matter, please call and ask to speak to a member of the Family law team on 0121 705 7571

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.